Hobby Lobby: A victory for religious liberty?

Among those who celebrated the Supreme Court's decision in favor of Hobby Lobby (which Grant Gallicho covered here) was the USCCB. "We welcome the Supreme Court’s decision to recognize that Americans can continue to follow their faith when they run a family business," the bishops conference said in a statement June 30. "Now is the time to redouble our efforts to build a culture that fully respects religious freedom."

How much will the Hobby Lobby decision help to advance that goal? After all, as Cathleen Kaveny writes in her analysis for Commonweal, Supreme Court decisions "are not only or primarily about the named plaintiffs. Their purpose is to set the normative framework" that will decide similar disputes. And Kaveny sees reason for concern: "what the Court has done in the Hobby Lobby case is transform the Religious Freedom Restoration Act—a statute enacted by Congress to counteract a bad Supreme Court decision that harmed powerless religious minorities—into a tool for powerful minorities to resist what they believe to be dangerous social and political change."

The ruling is, on its face, a victory for religious-liberty claims. But not an unambiguous one:

While the ruling recognizes that corporations have free exercise rights, it identifies those rights solely with the owners of the corporation. The legitimate interests of other corporate stakeholders, particularly the employees, who may not share their employer’s religious views, evidently have no standing. In this instance, it seems that more money buys you more religious freedom—and more freedom to infringe on the choices of others.

Second, the opinion provides virtually no way to evaluate the strength of a plaintiff’s religious-liberty claim. Although RFRA’s text speaks of “substantial” burdens on a claimant’s exercise of religious liberty, the ruling pulls the teeth of this requirement. According to Alito and the majority, a burden is “substantial” as long as a claimant sincerely says it is. But as Ginsburg noted, this is an invitation to run through a minefield, not a way out of one.

Read the whole thing here. And don't miss E. J. Dionne's column "After Hobby Lobby," in which he notes Justice Alito's positive assessment of the HHS contraceptive-coverage accomodation (what the USCCB refers to as the "so-called 'accomodation'") in his finding in favor of Hobby Lobby and wonders, "Will he and the other conservatives remember these friendly remarks when they rule in future litigation against the Obama contraception compromise?"

Building a culture that "fully respects religious freedom," as the bishops have called for, is a good goal (and they might just as easily have declared the moment right for redoubled efforts if the Court had decided against Hobby Lobby). The question will be whether the Hobby Lobby decision is a solid foundation for those building efforts. Kaveny and others make a strong case that the answer may be no.

Mollie Wilson O'Reilly is editor-at-large and columnist at Commonweal.

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