Setting the Record Straight on Hobby Lobby
by Christopher Dodson
Executive Director, North Dakota Catholic Conference
As soon as the U.S. Supreme Court issued the Hobby Lobby decision, critics of the decision began misrepresenting the opinion and its consequences. If a person were to believe some of the stuff appearing newspapers, press releases, and web sites, five Catholics on the U.S. Supreme Court declared that all corporations are persons under the Constitution and that these corporations now have a constitutional right to impose their religious beliefs on others, including their employees. The truth is something different.
The Court’s opinion did not deem corporations to be persons under the Constitution. It merely concluded that the language and history of a statute passed by Congress made the statute applicable to closely-held corporations. It was hardly a sweeping opinion granting expansive corporate rights.
That statute is the Religious Freedom Restoration Act (RFRA). It was signed by President Bill Clinton in 1993 after Congress passed it almost unanimously. It says a federal policy cannot “substantially burden” a person’s religious freedom, unless it serves a “compelling state interest” in a way that is “least restrictive” of that freedom.
Following the passage of the Affordable Care Act, the Obama administration decided that it had the authority to force family businesses to provide contraceptives at no cost to its employees, even if the family had religious objections to providing such services. Hobby Lobby and the other challengers objected to just four of the twenty required contraceptives because those four may operate after the fertilization of an egg, effectively acting as an abortifacient.
Some critics of the decision have called the Court “anti-science” because it did not look at studies purportedly showing that the four drugs only work to prevent fertilization. The Obama Administration, however, conceded that the four drugs may result in the destruction of an embryo. It is not the role of the Supreme Court to bring up and examine facts that are not in dispute. The Court was not being anti-science. It was respecting the judicial process.
The Court did not decide whether the Administration had a “compelling interest” in requiring employers to provide cost-free access to the four drugs. It did not have to make that decision because the burden imposed on the companies for not providing the four drugs was clearly substantial - fines in the millions of dollars - and because the government had a variety of other methods at its disposal to provide women the four drugs at no cost without requiring direct involvement by the companies.
It is important to remember that this decision is not about the Constitution. The Court was applying a unique set of facts - these four drugs, the particulars of the contraception mandate, and these three family businesses - to a specific law - the Religious Freedom Restoration Act. People who do not like the decision should not blame the Court. It was Congress that overwhelmingly passed RFRA and the Obama Administration that so clearly disregarded it when it conjured up the mandate.
A lack of understanding of the law might be excusable if it was not coupled with not-so-thinly-veiled hostility toward the Catholic Church. From the Huffington Post, to a full-page advertisement in the New York Times, to a weekly columnist in North Dakota’s own Fargo Forum, anti-Catholicism, America’s last acceptable prejudice, rears its ugly head again.
Apparently unable to understand the law or direct their displeasure at the Obama Administration, these new Know-Nothings blame the five Roman Catholics consisting of the Court’s majority in the opinion. (A sixth Catholic, Justice Sotomayor sided with the minority.) If you don’t like the outcome, blame the Catholics. If you don’t understand the law, blame the Catholics.
For the record, neither the owners of Hobby Lobby or the other businesses involved in the case are Catholic. Nor was Congress controlled by Catholics when it passed RFRA in 1993. Nor, as some have alleged with conspiratorial overtones, did the Catholic Church finance Hobby Lobby’s legal challenge. But the record, like the law and the rest of the facts, are of no concern to those whose single focus appears to be hostility toward religion or a fanaticism for cost-free abortifacients.