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Hobby Lobby: Whose Rights Are Being Denied?

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Five male members of the United States Supreme Court have ruled that the religious freedom of at least some for-profit corporations is violated by requiring them to provide contraceptive insurance to women in their employ. This is akin to slave owners complaining that Lincoln violated their civil liberties by denying them the right to keep human slaves. In each instance, I call such claims chutzpah.

Whose rights are at stake when the Affordable Care Act says employer-supplied insurance policies must include contraception, including for women who face serious illness if they become pregnant? The law does not require employers to use contraceptives themselves, to physically provide contraception to their employees or even to endorse the use of contraceptives. The rule creates no more infringement on employers' religious exercise than paying an employee's salary which the employee could then use to purchase contraception. To the contrary, the decision allows employers to impose their religious beliefs on their employees.

While the views of the five-man majority are not a model of clarity and include hints that its sweep might be limited, there is no question that for the first time in our nation's history the high Court has held that at least some business corporations can claim a right of religious liberty and their employees -- and the public -- be damned.

The impact on the public is illustrated by the suggestion of the majority that it is the government (that is the tax-payers) who should foot the bill for women's health.

The majority's absurd claim that their ruling is somehow a victory for personal freedom is devastatingly rebutted in the dissenting opinion of Justice Ruth Bader Ginsburg with a quote from the constitutional giant Zachariah Chafee that "Your right to swing your arms end just where the other man's nose begins."

To be clear, the case of Hobby Lobby is not a constitutional ruling. It does not say that the two family owned corporations challenging the law had rights of religious liberty under the First Amendment's free-exercise clause. It is a statutory ruling based on the Religious Freedom Restoration Act (RFRA) enacted by Congress in 1993 to restrain unnecessary government infringement of individuals' religious beliefs. The majority relied on an ancient federal statute known as the Dictionary Act, which defined the word "person" in federal statutes to include corporations where "context" did not "indicate otherwise."

Justice Ginsburg responded that RFRA clearly did "indicate otherwise" since "the exercise of religion is characteristic of natural persons not artificial entities" and quoted the historic 1819 decision in the Dartmouth College case holding that a corporation is "an artificial being, invisible, intangible, and existing only in contemplation of law."

The majority opinion written by Justice Samuel Alito responded that Congress itself had exempted non-profit religious corporations from the requirements of the Affordable Care Act. To which Justice Ginsburg noted that, unlike for-profit corporation, religious organizations exist to "serve a community of believers" of the same religious faith. For-profit corporations, on the other hand, are forbidden by law from discriminating in hiring on the basis of religion. Hobby Lobby, itself, employs some 13,000 people of varied religious beliefs.

To the dissenters' objection that the ruling would have no logical end point, the majority denied that it would necessarily be extended in the future to include other types of religious objections, such as paying for immunizations or blood transfusions. And to the claim that even public corporations would try to exempt themselves from the law, Justice Alito merely asserted that "it seems unlikely" that large corporations "will often assert RFRA claims."

In his own concurring opinion, Justice Anthony Kennedy, the often swing voter on the Court, tried to assure readers that the holding in the case would be limited, and also noted that since the decision was not constitutionally based, Congress could easily overrule it by amending RFRA. The latter point, of course, disingenuously ignores the fact that nothing of any consequence can be enacted by a grid-locked, partisan Congress these days. Congress probably couldn't even agree if ths sky is blue.

And while the majority Justices were desperately attempting to minimize the eventual sweep of the opinion, Justice Ginsburg was not accepting it. "Where is the stopping point?" she asked rhetorically. "Suppose an employer's sincerely held religious belief is offended by health coverage of vaccines or paying the minimum wage," she questioned, or paying women equal pay for substantially similar work? It just so happens that law suits involving the latter two claims are currently wending their way through the courts.

Stay tuned. And let's at least hope that Justice Kennedy is true to his word.

This post originally appeared in the Star-Ledger.