Bench Memos

9 Myths from Justice Ginsburg’s Hobby Lobby Dissent

MYTH 1: “[T]he Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

FACT: Justice Alito wrote, “We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’” As always, RFRA requires that the burden on religious exercise be substantial before the government is held to the “compelling governmental interest” test.

MYTH 2: “In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ.”

FACT: Justice Alito wrote, “[t]he effect of the HHS-created [nonprofit] accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.” (emphasis added)

MYTH 3: “[An exemption] would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.”

FACT: As noted before, women employees could receive free contraceptives through the less restrictive HHS accommodation procedure allowed to nonprofits.

MYTH 4: “Religious organizations exist to foster the interests of persons subscribing to the same religious faith.”

FACT: Countless religious charities exist primarily for the purpose of showing love to needy people, whatever their faith. The dissent totally neglects groups like the Little Sisters of the Poor, Samaritan’s Purse, and many others.

MYTH 5: “Workers who sustain the operations of [for-profit] corporations commonly are not drawn from one religious community.”

FACT: Employing people of the same faith isn’t required to receive a true exemption or accommodation. Religious nonprofit corporations, to which HHS has given an accommodation, often employ people from many different religious communities or from no religious community.

MYTH 6: Medical “experts [at the Institute of Medicine] determined that preventive coverage should include the ‘full range’ of FDA-approved contraceptive methods.”

FACT: In fact, the hastily-convened expert panel made no coverage decisions at all. Rather, it recommended consideration of all FDA-approved contraceptives, but explicitly made very clear that it could not consider the costs and benefits associated with coverage.

MYTH 7: “Congress intended only to restore, not to scrap or alter, the balancing test as this Court had applied it pre-Smith.”

FACT: As Justice Kennedy observed in City of Boerne v. Flores (1997), RFRA “imposes in every case a least restrictive means requirement–a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify–which also indicates that the legislation is broader” than the constitutional test.  Justice Kennedy’s opinion was joined by—wait for it—Justice Ginsburg.

MYTH 8: “Although the Court’s opinion makes this assumption [that the compelling interest test is satisfied] grudgingly, one Member of the majority recognizes, without reservation, that ‘the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.’ Ante, at 2 (opinion of KENNEDY, J.).”

FACT: This badly mischaracterizes the concurring opinion. What Justice Kennedy actually said made clear that the majority opinion was assuming without deciding the compelling interest question:

As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee. There are many medical conditions for which pregnancy is contraindicated. It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.

MYTH 9: “In a decision of startling breadth . . .”

FACT: This can’t be a decision of “startling breadth” because it only applies to closely-held corporations. Even Justice Kennedy said that “the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” If any opinion in his case has startling breadth, it is Justice Ginsburg’s own dissent, which, in denying religious freedom rights to owners of for-profit corporations, went too far even for two of her most liberal colleagues. 

[Update 7:25: An alert reader noted that Myths 3 and 5 failed to reflect the appropriate distinctions between “exemption” and “accommodation.” ]

Jonathan Keim — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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