Hobby Wobbly

Jewish Light Editorial

The five male justices on the United States Supreme Court who provided the majority in Burwell v. Hobby Lobby seriously impaired women’s health, created bad law, and, as we found out just three days later, didn’t even mean what they said.

The decision was poorly reasoned at the time it was issued, relied on errant assumptions, and could have profound implications for the balance between civil society and religious life, but not in any sort of constructive way.

Hobby Lobby, a privately held company, had an insurance plan that included a number of forms of contraception. The company actually removed coverage for certain intrauterine devices and emergency contraceptives so it could challenge its obligation to pay for them under the Affordable Care Act (ACA).

The statute Hobby Lobby relied on for its claim — this wasn’t a First Amendment freedom of religious expression case — was the Religious Freedom Restoration Act (RFRA), enacted in 1993 in response to another Court decision.


Justice Samuel Alito’s opinion for the five-man majority in Hobby Lobby upheld the right under RFRA of a for-profit, privately held company to exercise a religious objection to paying for these lawful contraceptives.

The Court’s logic was faulty on a number of levels. The majority reached its conclusions by conveniently overlooking the absence of any legislative history for RFRA indicating the statute would or should apply to moneymaking corporate entities.

Calling for-profit companies “people” with religious rights akin to those of individuals or religiously based nonprofits could open the barn door to myriad challenges to otherwise valid governmental business regulations.  

“Suppose,” said Justice Ruth Bader Ginsburg in her dissent, “an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work?” She also cited transfusions, antidepressants and gelatin-coated pills as potentially “sincere” religious objections.

The Court also took at face value the claim by plaintiffs that the challenged medications were abortifacients, that is, substances that induce abortions. The medical literature and professional associations largely refute this assertion. Science was ignored, with Hobby Lobby’s rights being based on its own interpretation of the facts, whether true or not.

This approach by the Court greatly exacerbates the potential consequences of the decision. It is one thing to accept a claimant’s religious beliefs at face value and then use a factual analysis to determine if they are being adversely affected. But the Court’s approach means a plaintiff can simply conjure up faux facts to support his, her or its case.

Finally, the Court undercut its own rationale for the decision just days after it was issued.

In Hobby Lobby, Alito saidthat RFRA is intended to make the government show, in adopting an otherwise legitimate law that impinges on religious practice, that it used the least restrictive manner available.

The Court indicated the government failed this test because instead of requiring Hobby Lobby to pay for the contraceptives in question, it could simply have allowed the company to sign a form specified in the ACA for non-profits that allows an exemption based on religious objection. If the company signed that form, then the insurance reimbursement for those objectionable items could be provided by a third-party insurer instead of the company.

But then only three days later, the Court issued an unsigned temporary injunction in support of non-profit Wheaton College, which claimed that under RFRA, the act of signing the form might not be the least restrictive manner available.

That set off Justice Sonia Sotomayor, in an opinion joined by fellow female justices Elena Kagan and Ginsburg:

“After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.”

The three dissenters were immensely skeptical that signing a form infringed on Wheaton’s rights: “I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” said Sotomayor. “But thinking one’s religious beliefs are substantially burdened … does not make it so.”

There are many who think this was a victory for religious freedom but their reasoning is hard to see. Women could lose payment options for reproductive health due to employer intransigence. Public health emergencies could ensue; can you imagine if thousands of private sector workers were denied payment for vaccinations due to religious objection? And some analysts are worried about discrimination under religious pretext — is refusing to serve LGBT couples acceptable under Alito’s view of RFRA?

Those in Congress who believe Hobby Lobby comprises bad law have already begun offering legislative fixes to proscribe its potential scope. Let’s hope they succeed.