Liberals should spend less time lauding the dissents in last week’s Hobby Lobby decision by the U.S. Supreme Court and more time reading them. If they did, they’d notice that some of their main arguments find little support — even from liberal justices.
The Obama administration has sought to require almost all employers that offer health insurance to cover contraceptives. The court’s majority ruled that Hobby Lobby Stores Inc. and similar companies could refuse to cover contraceptives to which they have religious objections.
Many liberals say that this ruling was flawed because the Religious Freedom Restoration Act — the 1993 law the case turned on — doesn’t protect for-profit corporations. Yet only two of the justices took that view; the other two dissenters refused to endorse it.
And not one of the justices chose to question the relevant beliefs of Hobby Lobby’s owners: that the contraceptives to which they object can cause human embryos to die. Unlike many liberal commentators, all the justices grasped that whether the owners’ objection has a strong evidentiary basis — which it does — is irrelevant to their legal claim. A government that respects religious liberty doesn’t subject religious claims to such scrutiny. When the Volstead Act exempted communion wine from Prohibition, lawmakers didn’t inquire about whether it really became the blood of Jesus.
Reading the dissenters would also keep people from misunderstanding the court’s subsequent ruling on Wheaton College, which has led to a similar liberal freak-out. The school wasn’t subject to the same contraceptive mandate as Hobby Lobby. Instead, it qualified for what the White House calls an "accommodation": It would merely have to sign a form authorizing others to provide the contraceptive coverage.
The evangelical school’s representatives objected, saying that signing the form would itself violate their religious beliefs. On Thursday, the court said that Wheaton didn’t have to sign the form until its case had been heard in court.
Three of the dissenting justices — Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor — accused the majority of going back on its word. Supposedly the majority had blessed the accommodation in the Hobby Lobby case and was now showing "disregard" for its own new precedent.
Liberal commentators went nuts. Kevin Drum at Mother Jones said the court’s behavior was "shameful" because "the obvious implication" of the Hobby Lobby case was that the accommodation was OK. Dahlia Lithwick and Sonja West, writing in Slate, attacked the court for declaring the accommodation "unconstitutional."
The court did no such thing. It didn’t even declare the accommodation illegal. It lifted the requirement temporarily while litigation proceeds. That it did so should be no surprise: The majority opinion in the Hobby Lobby case specifically declared that it wasn’t deciding whether the accommodation was legal, noting that other lawsuits on that issue were before the court and that another organization, Little Sisters of the Poor, had been told it didn’t have to sign the form until these lawsuits are settled.
All of the dissenting justices were aware of this fact: They criticized the majority opinion for being "noncommittal" instead of embracing the accommodation. The confusion in the commentariat arises because of a misreading of the majority’s analysis.
The Religious Freedom Restoration Act says that when the government imposes a substantial burden on the exercise of religion, it has to show that it has used the least burdensome means possible. The majority relied on the administration’s account that the accommodation is less burdensome than the full-blown mandate, and it said the mandate was therefore illegal. That didn’t mean that the accommodation itself passed legal muster. The court wasn’t saying that the accommodation is the right way to promote the government’s coverage goals while respecting religious freedom — it was saying that its existence shows that the mandate can’t be the right way.
To review: The court majority, in the Hobby Lobby case, declined to rule on whether the accommodation is compatible with the Religious Freedom Restoration Act and put off consideration of that issue for another case. In its Wheaton order, it again declined to rule on the legality of the accommodation while it awaits a full review. There is no inconsistency, no "retreat" (as Ginsburg, Kagan and Sotomayor put it).
The three justices who dissented on Wheaton, on the other hand, have gone in a few days from complaining that the majority hadn’t blessed the accommodation to complaining that they had taken back their blessing.
The language they use seems designed to fool gullible or ignorant commentators. Drum condemned the "PR games" at the Supreme Court. He’s right about that; he just has the wrong justices in mind.
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