Bench Memos

Justice Ginsburg’s Dissent in Hobby Lobby

Justice Ginsburg begins her overwrought dissent by labeling Justice Alito’s majority opinion “a decision of startling breadth.” But it’s Ginsburg’s own position that more aptly deserves that criticism.

As Matt Franck has pointed out, it’s striking that Justice Breyer and Justice Kagan refuse to join the seven full pages of Ginsburg’s dissent (pp. 13-20) in which she (joined only by Justice Sotomayor) takes the position that a for-profit corporation is never a person capable of an exercise of religion within the meaning of RFRA. I think that her position is clearly wrong, for the reasons that Alito elaborates. Consider also the remarkable consequences of her position, which the Ethics and Public Policy Center (the think tank I run) spelled out in our amicus brief. I here substitute “Justice Ginsburg” for “the Government” in several places in this excerpt from our brief:

[I]f there is any reading of RFRA and the Free Exercise Clause that raises disturbing implica­tions, it is Justice Ginsburg’s. According to Justice Ginsburg, the Government can make any market for goods or services a Free-Exercise-Free Zone simply by the artifice of placing whatever obligations it wants on corporate entities rather than on natural persons.

In Justice Ginsburg’s view of the matter, an incorporated kosher deli could be forced to carry non-kosher goods; an independent Catholic hospital with a lay board could be required to provide abortions; a closely-held market owned by Seventh-day Adventists could be required to open on Saturdays; and an incorporated retail store owned by Muslims could be forced to carry liquor.

On the remaining points in Ginsburg’s dissent, I’ll happily leave it to the interested reader to compare Alito’s careful analysis with Ginsburg’s implausible contentions. (I’ve covered these points amply before.)

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