Ruling in favor of Hobby Lobby, the Supreme Court decided that companies with religious objections cannot be required to provide health coverage for certain contraceptive services. In this week's conversation, scholars discuss the implications of this decision for religious freedom and explore the wider role of religion in American public life.
By: Steven D. Smith
Although Burwell v. Hobby Lobby (the contraception mandate case) has been one of the most passionately debated cases of the Supreme Court’s recent term, observers who were hoping for some major or “pathbreaking” pronouncement are likely to be disappointed. If they actually read the decision, that is; of course, this is not actually required of commentators or advocates.
The majority opinion announces no grand new doctrines or interpretations. It contains no visionary or oracular language. Rather, the opinion quotes the relevant statute—the Religious Freedom Restoration Act, or RFRA—and then carefully and methodically considers the various issues that the case raises under the statute. The Court emphasizes that its decision reaches only closely-held corporations, is “concerned solely with the contraception mandate,” and is not meant to resolve any number of other controversies that may arise under RFRA or the free exercise clause. The opinion concludes by remarking that “[t]he wisdom of Congress’s judgments on this matter is not our concern. Our responsibility is to enforce the RFRA as written...”
Given the decision’s modesty, it is odd that Justice Ginsburg’s dissent begins by describing it as “a decision of startling breadth.” By the end of her opinion, however, Ginsburg is enumerating a list of related controversies that the decision leaves unresolved and complaining that the majority opinion offers lower courts little guidance. I will leave it to the justice’s admirers to explain the consistency in these criticisms.
The decision, to be sure, is not without implications for larger, more profound questions. Can business corporations “exercise religion,” and thus have any claim to free exercise rights? Critics often say no (as does Justice Ginsburg); in my experience, they sometimes attain high dudgeon in denouncing the gross ontological error of supposing that a bloodless, soulless legal abstraction can have the capacity to “believe” or to “worship.” The Court’s response to this objection is brief, calm, and commonsensical, avoiding any temptation to go metaphysical. Corporations are legal fictions, the Court acknowledges, but they are fictions “used by human beings to achieve desired ends.” Consequently, protecting the free exercise rights of closely-held corporations “protects the religious liberty of the humans who own and control those companies.”
At another point, the Court quietly observes that denying free exercise protection to corporations owned and managed by religiously-motivated families like the plaintiffs in these cases “would effectively exclude these people from full participation in the economic life of the Nation.” That observation, I am inclined to say, touches on the true underlying philosophical disagreement. Is our vision of the nation one in which people are invited to participate fully in the marketplace (economic, political, maybe even academic) as the people they are, complete with convictions, commitments and consciences? Or do we want to make it a condition of full public participation that people leave these central, constitutive commitments at home (at least if the commitments are “religious”)? The Court does not elaborate or expound on the point, though, but merely suggests that there is no evidence that Congress, in enacting RFRA, intended to require any such divestment as a condition of entering into the economic sphere.
The modesty of the decision may disappoint different people for different reasons. Proponents of religious freedom might have wished for a more ringing endorsement. Critics of Hobby Lobby-type claims might have wanted an opinion that would provide more supporting material for indignant complaints about the decision’s devastating consequences for women, or for equality. (Of course, they can still quote Justice Ginsburg’s “decision of startling breadth” characterization.) Academics like myself might have appreciated a more adventurous or ambitious decision that would have provided subject matter for searching (at least in our own estimation) law review articles—or at least blog posts.
The fact remains, however, that religious freedom is a much embattled issue in our time. At least in some cultural neighborhoods, opinion has shifted dramatically since the early 1990s, when RFRA was enacted with overwhelming bipartisan support, and when self-styled progressives were among the enthusiastic supporters of free exercise exemptions. In other neighborhoods, the traditional commitment is still fiercely defended. Regardless of which part of that battlefield you find yourself on, questions about how religious freedom should apply to business corporations are complicated and difficult. (This might help explain why Justices Breyer and Kagan dissented separately to express their unwillingness to join in the “business corporations aren’t people” part of Justice Ginsburg’s opinion.) Especially in these tumultuous times, we should perhaps put aside our disappointment and appreciate a Supreme Court that does what a court was traditionally supposed to do—unpretentiously decide the case before it based on the specific facts and a careful review of the relevant rules and precedents.
Steven D. Smith is a Warren Distinguished Professor of Law at the University of San Diego and co-director of the university's Institute for Law and Religion.
This piece was originally authored on June 30, 2014 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.