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SCOTUS/ Winters: About the Hobby Lobby Decision

July Sat 05, 2014

Infophoto  Infophoto

The Hobby Lobby decision was greeted by the United States Conference of Catholic Bishops and others as a great victory for religious freedom, a defeat for the forces of secularism in the “war on religion.” Women’s groups filled email boxes across the land with fundraising appeals, adding the Hobby Lobby decision to their list of grievances in the purported “war on women.” But, the truth be told, the Supreme Court’s decision reflects the muddled quality of these supposed “wars,” does little to assuage them, and the reactions all-around indicate that the “wars” will continue because powerful interests want them to not because the issues at stake are incapable of resolution. There are a lot of issues to look at in the decision and in the reactions, and I will address them in no particular order.

The first question that popped to my mind was this: How many times does the Obama administration have to get spanked at the Supreme Court before it realizes that they approach some of these difficult issues with an insufficiently broad understanding of the law or the culture? Did many Catholic advocates and stakeholders not urge the White House to find a different mechanism for delivering the contraception coverage it sought? Did those of us who support the goals of the Affordable Care Act not urge the White House to avoid this fight? It has not been a good week for the White House at the Supreme Court, has it. And, as the administration prepares to draft an LGBT non-discrimination rule, you would think yesterday’s decision would make them more inclined to acknowledge the need for some robust religious exemptions. But, I am not holding my breath.

Second, the Court’s extension of rights that the American tradition associates with individuals to corporations, first undertaken in Citizens United and here extended to the religious field is problematic. The whole reason to form a corporation is to protect the individuals founding it from personal liability. If those same people can claim personal rights, while abstaining from personal responsibilities, a new and dangerous imbalance is introduced into our civic life. Make no mistake – I do not support the proposition that one must abandon one’s faith when entering the public realm, including the realm of business. More on that later.

I am firmly committed to the view that any decision that strengthens the Religious Freedom Restoration Act is a good decision. The Court’s majority opinion certainly does that and, in fact, Justice Ginsburg’s dissent is more than fulsome in its praise for religious freedom, especially the rights of religious organizations. But, there is something very worrisome at the heart of this case for Catholic organizations like Notre Dame and the Archdiocese of Washington and the Little Sister of the Poor, all of whom are challenging the accommodation the administration offered them: In his concurring opinion, Justice Kennedy seemed to indicate that he voted with the majority because the administration did not offer a similar accommodation to Hobby Lobby. Indeed, the majority opinion also indicates that the accommodation mechanism was “less burdensome” on religious freedom – one of the requirements to sustain a RFRA claim – than the situation facing Hobby Lobby.



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