The Corner

Justice Ginsburg’s Eight Worst Lines on Hobby Lobby

Mother Jones’s list of the “eight best lines” from her dissent seems to be pretty popular on the Left, judging from social media. They may indeed be her best lines, but they’re not very good. Others (such as Jonathan Keim) have already tackled some of them, but here they are in the same order MJ presents them.

1) “Ginsburg wrote that her five male colleagues, ‘in a decision of startling breadth,’ would allow corporations to opt out of almost any law that they find ‘incompatible with their sincerely held religious beliefs.’” If the law serves a compelling interest and there is no less restrictive means of pursuing it, the corporation would not qualify for an exemption under the majority’s analysis.

2) “The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.” False, as Justice Alito explains, since there are means of providing coverage that do not burden employers’ beliefs: ”The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”​

3) ”Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.” This claim is obviously false. Many, many religious organizations do not understand their purpose as merely fostering the interests of coreligionists. And they may hire from outside the faith without ceasing to have religious missions.

4) ”Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.” Nobody has, of course, ever disputed this point. Her use of the contraceptives is not the substantial burden in the case. The employer’s facilitation of that use is, and it is indeed propelled by the government.

5) “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.” Who truly believes that this cost plays any role at all in Ginsburg’s analysis? It’s expensive, so she cites it to show that employers have to pay for it; if it were cheap, she’d cite it to show that employers aren’t burdened by it. [Update that’s apparently necessary for some readers: See also point 2.]

6) “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.” I dealt with this canard here. (Justice Alito dealt with it in the decision, too.)

7) “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.” If the compelling-interest and least-restrictive-means tests yield different outcomes in different cases, ignorant people might well look at the result and think that the government was favoring one religion over others. They might think, for example, that the government treats Quaker conscientious objectors better than practitioners of human sacrifice because of theological commitments. The alternative to living with ignorance is catering to it by refusing to apply the terms of the Religious Freedom Restoration Act.

8) ”The court, I fear, has ventured into a minefield.” This comment comes directly after the bits about blood transfusions and religious favoritism. Note that the concern Ginsburg expresses swings free of her concern about applying RFRA to for-profit corporations. It’s an objection to applying RFRA at all. Whether or not she thinks the law wise, that’s her job.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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