Jonathan Rauch had this take after the U.S. Supreme Court struck a blow for religious liberty with its Hobby Lobby decision last week.
“The bottom line is nobody should hyperventilate about this ruling,” said Rauch, a senior fellow at the Brookings Institution. “It’s the beginning of a conversation about where to draw these lines, not the end of a conversation.”
We agree. This case is neither the disaster that the left has made it out to be nor the grand victory the right has claimed. It was not a First Amendment case but rather an opinion on a federal statute, which could be changed by Congress. The court reached a reasonable decision here that protected the religious freedom of a specific, narrow class of people while suggesting a way for the government to achieve its goal. While we do not share the beliefs of the Green and Hahn families, who brought the case, the right to freely practice religion is broad and firmly established. It is a founding principle of this republic. Maintaining such fundamental rights requires vigilance and vigorous protection. We share a concern forcefully expressed in Justice Ruth Bader Ginsburg’s dissent: There will be other claims under the Religious Freedom Restoration Act in the wake of the Hobby Lobby case now that the court has decided that owners of closely held companies can express their religious views through their companies (a view we share with the court’s majority). Like Ginsburg, we can imagine a variety of arguments involving religious doctrine that the courts now will have to arbitrate, and we are not as confident as Justice Samuel Alito, who insisted repeatedly in his majority opinion, that the court was deciding the case narrowly. As Alito noted, though, each claim will have to pass the same tests passed by Hobby Lobby to be successful. And as Rauch notes, this is only the beginning of what may be a long and tortured conversation over where to draw the lines between broad public interest and individual religious rights.
It is an important national conversation. The case arose after the Hobby Lobby craft store chain, owned by the Greens of Oklahoma, and Conestoga Wood Specialities, owned by the Hahns of Pennsylvania, objected to the federal government’s birth-control mandate arising from Obamacare. The Greens and Hahns believe that life begins at conception and argued that it was a substantial burden on their religious freedom for their companies to be forced by the federal government to provide four of the 20 forms of birth control that the families believed could cause abortion.
While research indicates that these forms of birth control, including intrauterine devices, do not abort established pregnancies, what mattered here is not the science but that the Greens and Hahns, following their religious beliefs, believed that they were abortifacients. Under the 1993 federal religious freedom act, the federal government may not “substantially burden a person’s free exercise of religion” unless the government has a “compelling interest” and then only if it can achieve that interest by the “least restrictive means.” Alito, writing for the 5-4 majority, found that the government does have a compelling interest but had imposed a substantial burden on the two families. He also found that the government failed the third “least restrictive means” test — there were other ways to achieve its goal of providing women with a broad spectrum of health care without forcing the Greens and Hahns to offer coverage they believed could lead to acts they consider immoral. The Obama administration’s best option? Exempt such conscientious objectors from the mandate just as it has exempted religious nonprofits. In those cases, the insurer excludes contraceptive coverage from the employer’s plan and bears the cost; the nonprofit is insulated from the coverage it finds offensive. Alito also suggested the government could bear the cost itself, though this is a more complicated option. Ginsburg was right to raise the specter of unintended consequences. Can a company now decline to cover all forms of birth control? What about health benefits for same-sex couples? Could a Muslim shopkeeper fire an employee who likes to have a drink after work? These are pertinent questions that may well be part of the line-drawing that Rauch refers to in the interview he gave at the Brookings website. But citizens have to have confidence that the courts are capable of both judicial restraint and thoughtfulness in making these decisions. And, in any case, the cause of religious liberty in this case demanded the result the majority found, although future cases may require a different result.
“Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent, in effect, tell the plaintiff that their beliefs are flawed,” Alito wrote. “For good reason, we have repeatedly refused to take such a step.” The court was correct in not taking such a step in this case.
Reprinted from the Milwaukkee Wisconsin Journal Sentinel