The outrage du jour is over the Supreme Court’s decision in the Hobby Lobby case which James Taranto summarizes here:
The majority, in a decision by Justice Samuel Alito held that Hobby Lobby and two other companies need not comply with the ObamaCare birth-control mandate, to which their owners object on religious grounds.
The plaintiffs in these cases did not claim their First Amendment rights had been violated; such a claim, as we noted in March, would almost certainly have been precluded by the 1990 case of Employment Division v. Smith. But Congress responded to that case by enacting RFRA, which mandates the courts apply “strict scrutiny” to government policies as enforced against litigants who object on religious grounds.
In order to meet strict scrutiny, the government must show both that the policy is justified by a “compelling” interest and that it is the “least restrictive means” of furthering that interest. At least five justices seemed to agree that the interest in assuring cost-free access to the abortifacient contraceptives in question is “compelling”: the four dissenters and Justice Anthony Kennedy, who in a concurring opinion wrote: “It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation at issue here furthers a legitimate and compelling interest in the health of female employees.”
In their acerbic response the editors of the New York Times get the law and the facts wrong from the first sentence:
The Supreme Court’s deeply dismaying decision on Monday in the Hobby Lobby case swept aside accepted principles of corporate law and religious liberty to grant owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.
As I mentioned when the case was first accepted by the Court, that closely-held private corporations serve as alter egos of their owners is the prevailing view in corporate law and this case is only controversial in its subject matter rather than its outcome.
I have read the majority decision and Justice Ruth Bader Ginsburg’s dissent. If I understand Justice Ginsburg’s position, it hinges on corporations not being mentioned in the Religious Freedom Restoration Act of 1993 (which I’ve also read). Justice Ginsburg’s view strikes me as novel. If it were applied, say, to the First Amendment, it would mean that freedom of the press does not apply to the New York Times Company, the Tribune Company, or News Corp., all for-profit corporations. I think that RFRA, enacted by a Democratic House and Senate and signed into law by a Democratic president, means what its plain language says: it’s a limitation on the power of legislatures and executives to craft laws or regulations that limit the free exercise of religion without a compelling interest and only then by the least restrictive means. Since there are plenty of approaches the Obama Administration could exercise to achieve the same goal including compelling insurance companies to include contraceptives at no additional charge, clearly compelling employers is not the least restrictive means.
In my view any ire should be directed, as usual, against the Congress rather than against the Court and the remedy that foes of the Hobby Lobby decision should be seeking should be revisions in RFRA. The editors of the Washington Post come closer to that stance:
If this is the sort of balancing that the Supreme Court will conduct, Congress should change the law. The Constitution generally does not require religious exceptions to generally applicable laws. The ruling relied on the Religious Freedom Restoration Act, a statute that does not mention corporations and that lawmakers could easily narrow. They should not only guarantee contraception coverage but also repair the federal government’s ability to provide for wholly legitimate common goods such as public health and marketplace regulation.
Eugene Volokh defends the decision:
Likewise, the Hobby Lobby owners drew a line: Providing health insurance — including through their closely held corporation — that covers what they see as tools for homicide is sinful complicity with sin. Providing salaries that employees may use to buy the same tools or hiring employees who use those tools is not.
Many of us might draw the line elsewhere (even if we agreed with the judgment that the potentially implantation-preventing contraceptives are sinful). But it is for the owners of Hobby Lobby to draw the line and not for the courts to second-guess it. Perhaps there is a compelling interest that justifies the substantial burden that the law imposes on the owners — more on that later — but courts cannot say that the burden is insubstantial simply because they think the complicity is too attenuated.
And this position should look especially sensible, I think, given how wide an array of judgments our own American legal system has on the subject of complicity.
As might be expected the bitter argument in the blogosphere has revolved around the policy rather than the law. I don’t want to get into the policy here. The deeper questions are about the nature of law and what we expect judges to do.
If laws are the minimum standards of acceptable behavior and limited in their scope and applicability to their plain language, precedent, and the common law, then we should want judges who will try to discern that. If, on the other hand, laws are blank canvases on which our policy preferences are to be written, we want judges who will pursue those preferences zealously and are able to mask their advocacy as justicion.
The question that underpins the deeper questions is how can people with different beliefs, values, and preferences live together? There are two competing strategies. Either we can learn tolerance and forbearance or we can use compulsion.