THE BLOG
07/12/2014 01:54 pm ET | Updated Sep 11, 2014

Beyond Accommodation: Hobby Lobby as a Challenge to Our Perception of Religious Organizations

Despite the fact that Americans continue to walk away from organized religion en masse, the nation continues to engage in its perpetual struggle to characterize religious institutions.

The Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc. has engrossed the American public for many reasons -- its implications span ongoing debates over healthcare, religion and reproduction. Appropriately, commentary on the case runs the full gamut as well: conservatives and liberals alike have exhaustively explicated the 95-page opinion handed down by SCOTUS.

But the national discourse surrounding the ramifications of this case is replete with continuing attempts to identify the reason that this case has struck such a resounding chord within Americans. Liberals focus on its effect on women, while conservatives continue to expound the decision's benefits for religious liberty.

Sorting through the litany of commentary that continues to grow exponentially, however, elucidates a fundamental disagreement between liberal and conservative camps -- the criteria that constitute a religious organization entitled to religious accommodations.

Professor Paul Horwitz of the University of Alabama School of Law wrote that Americans are especially disconcerted by the Supreme Court's increasingly lax attitude toward accommodation. He wrote:

The first source of controversy is the collapse of a national consensus on a key element of religious liberty: accommodation. Throughout American history, there has been widespread agreement that in our religiously diverse and widely devout country, it is good for the government to accommodate religious exercise. We have disagreed about particular accommodations (may a Muslim police officer wear a beard, despite police department policy?), and especially about whether religious accommodations should be ordered by judges or crafted by legislators. But we have generally agreed that our nation benefits when we help rather than burden those with religious obligations. That consensus seems, quite suddenly, to have evaporated.

I am not so sure, however, that the ostensible evaporation of a "consensus" (if it ever existed --a claim that is contestable in and of itself) can be evidenced by the debate surrounding Hobby Lobby. This is because such an explanation assumes that Hobby Lobby's complaint can be characterized as "religious exercise" that merits a spot among claims that we have historically accommodated (according to Professor Horwitz). Americans do not universally consent to the majority opinion's claim that Hobby Lobby constitutes a religious organization entitled to the same accommodations as religious communities like churches or religious non-profit organizations in the first place. In other words, this is an issue even more fundamental than an argument about accommodation; instead, it is an argument about whether Hobby Lobby has even the right to approach the table as a religious organization. It is the Supreme Court majority's decision on this argument that has left many Americans reeling, and others cheering.

While there have been legal arguments and political analyses alike analyzing whether Hobby Lobby ought to have a claim to accommodation, as Linda Greenhouse points out, the point of contention in this case lies beyond its doctrinal matters. In more pragmatic terms, it simply seems problematic that a company boasting an annual revenue of over $2 billion, 572 locations and 21,000 employees can enjoy religious freedom.

But those Americans who continue to doubt the recent appraisal of Hobby Lobby as an organization that can tenably petition the courts for a religious accommodation are in good company, for the Supreme Court seemed to be split over this very point. Writing on behalf of the minority, Justice Ruth Bader Ginsburg dissented:

Until this litigation, no decision of this Court recognized a for-profit corporation's qualification for a religious ex-emption from a generally applicable law, whether under the Free Exercise Clause or RFRA ... The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is 'an artificial being, invisible, intangible, and existing only in contemplation of law' ... Corporations, Justice Stevens more recently reminded, 'have no consciences, no beliefs, no feelings, no thoughts, no desires' ...

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. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court's attention. One can only wonder why the Court shuts this key difference from sight.

I count myself among those individuals, like Justice Ginsberg, who hesitate to believe that Hobby Lobby -- or companies that identify with it -- is entitled to the protections stipulated by the Religious Freedom Restoration Act (RFRA). After all, as Justice Ginsburg continues, the decision handed down last week seems to belie the intention of the RFRA as a bipartisan, democratic response to the Supreme Court's decision in Employment Division v. Smith (1990), in which the Court ruled that individuals could not seek religious exemptions from generally applicable laws with a compelling purpose.

Hobby Lobby was, notably, not a First Amendment case. Nevertheless, so long as the RFRA is in effect, Hobby Lobby - -along with other "closely held corporations" -- will be entitled to protection from "a rule of general applicability [except if it] furthers a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest."

Decisions from the Court have already proved that this case will serve as precedent for many to come. Hobby Lobby has already gone beyond informing court opinions -- it has challenged us to examine our perception of religious organizations and their privileges (or lack thereof) in an increasingly diverse public square.