Hobby Lobby: The Real Religious Exemption Fight Is Yet to Come
In the months before today's U.S. Supreme Court decision, some Hobby Lobby supporters posed questions like the following: Should an orthodox Jew who owns a little corner deli be required by law to sell pork or risk losing his deli operator's license, and should he also be required to hire non-Jews to certify that the food is kosher?
Of course not, but Hobby Lobby is no little corner store, and the case had nothing to do with what it could sell or who it could hire. Rather, Hobby Lobby is a national corporation with a diverse product line. It is no church, either, but it is a business that its owners founded in express relation to their orthodox Protestant religious beliefs. The case began when they cited religious reasons for refusing to provide the company's employees with some but not all federally-mandated health insurance contraception options (ones that they believe cause abortions).
Hobby Lobby owners' particular claims, and the kindred claims of other "closely held corporations," have prevailed. In today's 5 to 4 ruling, the Court held that under the terms of the federal Religious Freedom Restoration Act, better known as the RFRA, there are conditions under which even expansive for-profit enterprises like Hobby Lobby may be exempted on religious grounds from supplying certain federally-mandated health insurance options to employees.
That is important enough, but that is also all that the Court actually decided. The majority opinion, penned by Justice Samuel Alito, and joined by Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, describes the owners as having "sincere Christian beliefs that life begins at conception." The majority finds that the "contraception mandate" issued by the U.S. Department of Health and Human Services (HHS) in concert with the Patient Protection and Affordable Care Act of 2010, better known as the ACA or Obamacare, "substantially burdens the exercise of religion" by Hobby Lobby's owners. While it also affirms that the HHS regulation reflects a compelling governmental interest in providing insurance coverage that protects the health of female employees, it concludes that the mandate is not, per the RFRA, "the least restrictive means" of advancing that compelling governmental interest without unduly burdening the company owners' free exercise of religion.
Love it or loathe it, the Hobby Lobby decision is limited in scope. It clarifies how a federal statute, the RFRA, applies to the species of claims made by Hobby Lobby's owners, but it leaves unresolved many other statutory and constitutional questions raised by each side to the dispute (see each side's amicus briefs). The decision is germane to for-profit corporations but, strictly speaking, it is not germane to the nation's most consequential church-state issues and religious liberty controversies, all of which in one way or another involve religious nonprofit organizations—America's hundreds of thousands of churches, plus its hundreds of thousands more religious charities, faith-based groups, religious secondary schools and colleges, and community-serving ministries, large or small, local, national, or international.
The Hobby Lobby decision merits all the cheering (by its fans) and jeering (by its foes) that we are hearing. But, at least on my first read-through, the majority opinion strikes me as claiming less about the decision's significance, and the dissenting opinion (by Justice Ruth Bader Ginsburg joined by Justice Sonia Sotomayor, and joined in all but one part by Justices Stephen Breyer and Elena Kagan) strikes me as claiming more for its significance than is warranted.
In my view, Justice Anthony Kennedy's four-page concurring opinion comes closest to accurately calibrating the decision's rationale and reach. Kennedy avers that the majority opinion "does not have the depth and sweep ascribed to it by the respectful and powerful dissent." "Free exercise," he observes, means "more than just freedom of belief." It extends to "the right" to "establish one's religious" identity in the "political, civic, and economic life of our larger community" ("establish" was not his most well-chosen word here). The "right of free exercise," however, must not "unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling." But, in cases in which "religious claims" are more "difficult and expensive to accommodate" than seemed true in this case, look for Kennedy to strike the balance against them.
Arguably, the overarching "religion in the public square" question of our day is this: Which, if any, so-called ministerial exemptions—on health insurance coverage, on hiring, or on other matters— that religious nonprofit organizations enjoy when delivering "worship services" should they retain when they are delivering social services that are funded in whole or in part by government, and/or administered with employees who are paid in whole or in part with tax dollars—all, some, or none? The Hobby Lobby decision does not address that question, but President Obama's planned executive order disqualifying organizations that discriminate on the basis of sexual orientation from receiving federal contracts, whether or not the order contains any ministerial exemptions, will put that question at the top of the next "religion news" cycles.
John J. DiIulio Jr. is the author of Godly Republic: A Centrist Blueprint for America's Faith-Based Future (University of California, 2007); he served as first director of the White House Office of Faith-Based and Community Initiatives, and assisted the Obama administration in reconstituting that office. This piece originally appeared on the Brookings Institution's FixGov blog.