More Hobby Lobby Strawmen

by Patrick Brennan

The Daily Beast has a piece today by Jay Michaelson arguing that the Supreme Court’s ruling today that applying the HHS contraception mandate to certain corporations violates their rights under the Religious Freedom Restoration Act “may be a setback, in the long run, to the conservative crusade for ‘religious liberty.’”

Unfortunately, Michaelson doesn’t seem to understand the Supreme Court’s ruling, the Religious Freedom Restoration Act, or the larger conservative crusade for religious liberty.

He argues:

Early on in Justice Alito’s opinion for the court, he says of the plaintiffs, the Green and Hahn families, that “according to their religious beliefs the four contraceptive methods at issue are abortifacients.”

Let’s parse that sentence.  “The four contraceptive methods at issue are abortofacients.” [sic Daily Beast] That should be a statement of fact, not faith.  Either these pills cause abortions, or they don’t.

If I believe the sun revolves around the earth, is that now a disputable fact?  According to Justice Alito, yes.  If I have a religious belief that it does, then it doesn’t matter that it doesn’t.

Of course the plaintiff’s argument is not based entirely on fact — it involves moral questions. But it’s much more ratio and less fides than Michaelson seems to think. They believe destroying an embryo is a grave moral evil — that’s a moral judgment. That moral judgment moves them to object to the HHS birth-control mandate because they don’t want to cover “methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4, may result in the destruction of an embryo.” Is HHS a faith-based institution?

In any case, of course, the Supreme Court shouldn’t adjudicate theological questions, and the entire concept of religious freedom requires accepting that some people sincerely hold beliefs that aren’t universally acknowledged. But the plaintiffs aren’t in the realm of geocentrism here.

The bigger issue comes to where Michaelson thinks the Supreme Court’s decision could extend:

Suppose I have a sincere religious belief that if I stop at a stop sign, God kills a kitten.  Or, slightly more seriously, suppose I have a sincere religious belief that if I let gay people stay at my hotel, they might have gay sex.  If the Supreme Court never inquires into the reasonableness of my religious belief, then I shouldn’t have to obey traffic laws, nondiscrimination laws, et cetera—or, more precisely, the government has to go through all kinds of legal hoops to make me obey.

Of course, the beliefs in Hobby Lobby were ones with which Justice Alito is himself personally familiar.  These plaintiffs are complaining about contraception—and when that didn’t fly politically, they recast it as a complaint about “abortofacients.” [sic]

This is nonsense: There are cases winding their way through the courts right now about contraception per se. The plaintiffs don’t object to most forms of contraception, full stop. There’s no trickery here.

Equally detached from central facts of the Court’s decision is this idea that the logic of the case calls into question laws such as . . . the requirement to stop at a stop sign. He picks this up later in the piece:

As Justice Ginsberg [sic] noted, how about corporations owned by people who are religiously barred from blood transfusions (Jehovah’s Witnesses), antidepressants (Scientologists), and vaccinations (Christian Scientists)?  On its face, Hobby Lobby says it’s not about those cases.  But its logic certainly applies: if I believe that vaccinations are morally wrong, my company should not have to provide coverage for them.

To be sure, Justice Alito did not make this judicial doctrine up.  Affirming the legitimate religious beliefs of Native Americans, Voudou practitioners, Jehovah’s Witnesses, and even Presbyterians, the Court has long refrained from evaluating which religious beliefs are valid and which are not.

But Hobby Lobby has taken it to its logical extreme, and in so doing, threatened its very foundation.  This doctrine cannot hold, especially now that third parties can be affected by someone’s religious preferences . . . .   The result will have to be a limitation of the doctrine itself.

Where to begin: Hobby Lobby doesn’t just “say” it’s not about those cases, it specifically explains why it’s not and admits that an issue like vaccinations present a different moral calculus than insurance coverage of contraception did, and notes that, in any case, there is no empirical basis for suggesting that such claims will be brought, either. (As they have not been in 20 years of our having the statutes we do on religious liberty.)

There isn’t a “doctrine” here, there’s a very specific statute that explicitly weighs the fact that “third parties can be affected by someone’s religious preferences.” RFRA, the statute on which today’s decision relies, allows for burden on religious liberty in furtherance of a compelling government interest as long as it’s reached by the least restrictive means. That leaves a tremendous amount of space for dismissing claims about conscientiously objecting to stopping at stop signs, or other practices that harm third parties.

The “doctrine” of religious liberty doesn’t need to be limited because the statute that provided Hobby Lobby a victory already is limited. And this isn’t a minor point: Michaelson is wrong about Hobby Lobby and the eventual destination of the (mainstream) conservative “crusade” for religious liberty in part because he assumes today’s decision set some kind of radical precedent for religious liberty. It didn’t.

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