The Supreme Court released its opinion in Burwell v. Hobby Lobby on Monday, holding that the HHS contraception mandate violates an employer’s rights under the Religious Freedom Restoration Act, even when the employer is a for-profit corporation closely held by individuals who object to the mandate on religious grounds. Following the decision in McCullen v. Coakley, the abortion clinic buffer zone case, Hobby Lobby is the second case in a week where the Court told us how much each side of a fundamentally divided issue can ask of the other, under the law. They are hard cases to talk about without questioning the good faith or good sense of the other side. Nearly everyone thinks either Hobby Lobby or McCullen was a bad decision.
The only thing more frustrating than a bad high-profile Supreme Court decision may be the public’s response to any high-profile Supreme Court decision. For proof, one need only look as far as some of the tweets on SCOTUSblog’s Twitter feed….
As Staci Zaretsky pointed out yesterday, a lot of people don’t seem to realize that SCOTUSblog is a privately owned website not controlled by the U.S. Supreme Court. In addition to the gems unearthed by Staci, here are a few more:
@ShahidaOnHealth: This @SCOTUSblog ruling allows bosses to force their personal beliefs on employees. #Obamacare #ACA
@JayRooTheDee: everyone should tweet @SCOTUSblog and tell them what we think of their misogyny.
@Rockinwil: Time to do away with the @SCOTUSblog since they are no longer representing citizens of the U.S.”
@phylisajoy: #HobbyLobby AND #bufferzone @SCOTUSblog ruling suck so hard. LET FREEDOM nuvaRING!
Every tweet need not be a bench memo in 140 characters or less. Someone’s legal analysis might be as sharp as a bucket of mud, but at least when it addresses the steps in the applicable legal test, you can engage them.
Even once the debate moves beyond grunts of dismay to a more reasoned level, discussion of either case often hits the same wall. One side can’t move forward in the conversation because the other side, citing sincerely held religious beliefs, seems so unreasonable to them. The interests of religious believers are not worth considering, if there is even a mite of interest on the other side. “Sure, opponents of abortion have the right to free speech . . . just not when women entering a clinic may have to actually hear someone say that abortion isn’t a beautiful, empowering choice.” “Well, yeah, opponents of some contraception have the right to exercise their religious beliefs . . . just not when women who want an IUD want their employers to pay for it.” For some people, anyone who thinks otherwise is just not worth talking to.
McCullen and Hobby Lobby are both reminders that a certain vocal segment of American citizens does not take religion seriously. To them, religious faith and its logical consequences are simply a joke . . . until people of faith insist that they should be able act according to their faith, express themselves according to their faith, and resist government intrusions on their faith. At that point, the joke ends. People who don’t take religion seriously start hyperventilating and scrambling to find ways to trim legal protections of religious liberty down to the size of a Post-It note.
For people who are dismissive of religion, their effort to limit rights is not about a dutiful adherence to First Amendment jurisprudence or the statutory protection of RFRA. It is about the virtual inconceivability of the notion that religious beliefs could ever be as worthy of consideration as liberal social-policy beliefs. Underneath their analysis is the bedrock sense that religious faith is silly.
People who think this way can humor religious minorities when doing so doesn’t require much more than a condescending pat on the head. They can tolerate religious believers who are kooky outliers — small fringe sects like the plaintiffs in the O Centro case who wanted to consume tea that contains a Schedule 1 substance. Where the tolerance ends, though, is typically where more mainstream, conservative religious belief asks to be taken seriously.
The plaintiffs in Hobby Lobby asked for their sincere belief to be taken seriously. The family that owns and operates Hobby Lobby would be doing something they find repugnant based on their religious views if they supported and paid for abortifacient contraception. In order to take their RFRA claim seriously, you don’t need to say that employers can prevent their female employees from accessing contraception. You don’t need to say that women whose employers won’t pay for medical services for religious reasons can’t get any coverage for those services. You don’t need to say that for-profit corporations that make a claim like Hobby Lobby’s will get rubber-stamp approval. You just need to acknowledge that there is a limit to how much the government can compel religious believers to do what runs counter to their consciences. Under the law, religious beliefs may be mistaken, even downright crazy, but they are no joke.
The law intervenes and does what a lot of people acting on their own cannot or will not: it creates space for radical disagreement on fundamental issues. The more division there is about religion, the more we need legal assurances that the free exercise of religious beliefs will be respected, along with the interests of others. We need legal protections because there is always someone crazy on the other side of where we are . . . and because they are thinking the same thing about us.
Ruling against Hobby Lobby now would mean limiting the rights of employers to follow their conscience with regard to other services the government might mandate in the future. If opposition to contraception seems like a prudish example, consider a possible mandate for prenatal sex-selection or clitoridectomies. If, in the future, the government claims an interest in guaranteeing cost-free access to female circumcision for all American parents, should employers have to pay for coverage, even if there is another way of making the service available to people who want it, without forcing people who find it abhorrent from picking up the tab? Like maybe the government picking up the tab itself?
If there’s another way for us to get along, we should find it. If there’s a way to not substantially burden religious believers but also accomplish the government’s ends, we should do it. This is what RFRA demands, and the majority in Hobby Lobby reflects that.
At the end of the day — at the end of the Court’s Term — we have to live with each other. I’m stuck with people who think that women who want abortions should only be exposed to sanguine messages. With people who think that it is outrageous for employers not to pay for all kinds of contraception. They’re stuck with people like me who think the greatest violence committed at abortion clinics is what goes on inside. With someone who thinks that the government should not punish religious believers for conducting their affairs according to their consciences, unless the most stringent standard is met. And we’re all stuck with the people on Twitter who think that Tom Goldstein, Amy Howe, and Lyle Denniston are Supreme Court justices. Somehow we have to make it all work.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at firstname.lastname@example.org