Court Monitor

Victory for Religious Liberty!

It was a long wait, until the very last day of the Supreme Court's term, but the wait was worth it. On June 30th, the U.S. Supreme Court established a right of religious liberty for the Hobby Lobby corporation not to be required to pay for contraceptives that cause abortion. Burwell v. Hobby Lobby Stores, Inc., 2014 U.S. LEXIS 4505 (U.S. 2014). "The contraceptive mandate, as applied to closely held corporations, violates" the Religious Freedom Restoration Act (RFRA), wrote Justice Sam Alito for the 5-4 Court.

Hobby Lobby faced fines of $475 million per year for declining to fund all 20 methods of birth control as demanded by the Obama Administration. The owners of Hobby Lobby, the Green family, had religious objections preventing them from paying for those methods of birth control that actually cause abortion. Those massive fines would have been more than 20% of Hobby Lobby's annual revenue.

The Becket Fund for Religious Liberty took Hobby Lobby's case to the Supreme Court, which held a contentious oral argument in April. The vote of Justice Kennedy was needed for Hobby Lobby to prevail, and at oral argument he displayed his discomfort with forcing people to pay for abortion.

This case was not decided under the First Amendment right to free exercise of religion, but under a federal statute (RFRA) enacted by a heavily Democratic Congress and signed into law by President Bill Clinton.

A parade of horribles was trotted out by the four liberals on the Court in their dissent. Would other Christian companies soon have a right under the federal law, RFRA, to discriminate against someone "antagonistic to the Bible," or against a for-profit photography business owned by a husband and wife who refused to photograph a lesbian couple's commitment ceremony based on the religious beliefs of the company's owners?

Justice Kennedy, the swing 5th vote who made the 5-4 victory for Hobby Lobby possible, praised the "powerful dissent" by the liberals and promised that the scope of the 5-4 majority opinion "does not have the breadth and sweep" that the dissent alleged. In fact, a few months earlier Justice Kennedy was apparently unwilling to overturn a lower court ruling that punished a photographer for declining, on religious grounds, to take pictures of a same-sex marriage.

The logic of the Court's ruling in favor of Hobby Lobby was not entirely satisfying. The Court emphasized that government could achieve its goal by providing these same abortion-causing drugs at taxpayers' rather than Hobby Lobby's expense. This illustrates the limited benefit of religious exemptions, if the objectionable conduct can be shifted onto the taxpayers at large.

But the ruling does suggest that there is a 5-4 majority on the Supreme Court for pro-life issues, and that makes it unlikely Planned Parenthood will appeal any of its losses to the High Court. Whether this victory for religious liberty extends beyond the abortion issue to protect religious freedom against other intrusions remains to be seen.


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