For Ginsburg, a Human Being Isn’t a RFRA “Person” Either

I’ve discovered that I have been far too charitable to Justice Ginsburg regarding her Hobby Lobby dissent.

Recall that the first ground on which Ginsburg would have ruled against Hobby Lobby was her (badly misguided) proposition that a for-profit corporation is never a person capable of an exercise of religion within the meaning of the Religious Freedom Restoration Act. (Justice Breyer and Justice Kagan refused to join this part of Ginsburg’s dissent.) Well, it turns out that Ginsburg also somehow believes that a flesh-and-blood human being, when operating in the world of commerce, is also not a person capable of an exercise of religion within the meaning of RFRA. As she tells Katie Couric (somewhere around the 2:20 mark in the “Hobby Lobby Dissent” video available here):

But I should stress that my Hobby Lobby dissent really didn’t turn on the difference between a corporation and a sole proprietorship. My point was that no employer, whatever the business form, should be able to transfer that employer’s religious belief onto people who do not share that belief.

So Ginsburg is now telling us that her real “point” isn’t the actual ground she set forth. Worse, what she now calls her real “point” is inconsistent with her analysis (as well as with any conceivable reading of RFRA). In arguing that the Free Exercise case law that preceded RFRA provided “no support for the notion that free exercise rights pertain to for-profit corporations,” Ginsburg tried to distinguish away Gallagher v. Crown Kosher Super Market (1961) on the ground that four of the five challengers “were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation.” But she now maintains that human individuals engaged in commerce (as the individual challengers in Gallagher were) somehow have no RFRA rights at all.

From Ginsburg’s own account, it would appear that she was driven by her ideology to contort the meaning of RFRA to reach the result she wanted to reach. (Ginsburg’s notion that a person invoking the protections of RFRA “transfer[s]” his beliefs onto others also reflects her hostility to RFRA.)

Most Popular

Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More
Elections

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More
U.S.

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More