In the wake of the Supreme Court’s ruling in the Hobby Lobby case that exempts closely held corporations (not publicly owned) from the Affordable Health Care Act’s mandate to pay for contraceptives, the supporters of Hobby Lobby are declaring it a victory for religious liberty. On the other hand, the Left has framed the issue in terms of women’s rights. Even the respected legal scholar, Douglas Laycock, has framed the issue as a choice between religious liberty on one side and women’s rights on the other (“A Flood of Suits”). While the Court framed it as a balancing act between religious liberty on one side and government interest on the other, per the Religious Freedom Restoration Act (RFRA). This framing falsely sets up the debate as one between religious liberty on the one hand (represented by Hobby Lobby and its supporters) and either women’s rights or government interest on the other. No one is questioning whether or not Hobby Lobby’s request really is about religious liberty. How can a decision that allows a particular individual’s (or a corporation’s) right to the free exercise of religion trump the right of other individuals to act according to the dictates of their own consciences be a victory for religious liberty?
The Hobby Lobby case is part of a larger push by the Religious Right to expand their right to the free exercise of religion at the expense of others’ religious freedom. The obvious sham behind this religious liberty rhetoric became apparent after the Arizona legislature passed a bill earlier this year that would have allowed “persons” to discriminate in the name of religion. The real purpose of the Arizona law (SB1062) was to allow Christians to discriminate against homosexuals, but the bill was written in much broader terms and would have allowed “persons” (defined as “any individual, association, partnership, corporation, church, estate, trust, foundation or other legal entity) to discriminate against any individual or group as long as it was on the basis of “sincerely held” religious beliefs. Once the public became aware of the law cries of outrage were heard all across the country. Fortunately, Governor Jan Brewer vetoed the bill as a result. The Arizona bill and a string of similar state laws enacted in response to the New Mexico Supreme Court’s ruling against Elaine Photography in 2012. One of the owners of the company had refused services to Vanessa Willcock and her partner on the grounds that their relationship was contrary to the owner’s Christian beliefs.
The defenders of these laws claim that being forced to comply with government mandates for public accommodation and nondiscrimination force them to compromise their religious beliefs (see Center for Arizona Policy’s “Fact Sheet”). But their request to “live out their religious beliefs” is in fact a request to impose their religious beliefs on others.
The fact that no one has challenged the “religious liberty” claims of Hobby Lobby, and others, leaves the impression that the case really was a victory for religious liberty. Despite Justice Alito’s insistence that the case was narrowly decided it’s hard to see how he can contain the flood of requests that will now pour in pleading for similar exemptions. They should be denied but it is hard to see how the claims of others can be given to some but not others. The Hobby Lobby case should never have been decided according to RFRA, it should have been stopped in its tracks as an invalid free exercise claim. The right to the free exercise of religion does not include the right to violate the rights of others. Religious liberty was not the victory in yesterday’s ruling.
There are other troubling aspects of the Hobby Lobby case and I hope to address them in a later post as time permits.