On the Hobby Lobby Case


The Hobby Lobby case was, in my judgment, an easy one, a point that’s made very well by Justice Alito’s straightforward analysis in the opinion. The logic is simple: (1) corporations are persons because Congress said so in the Dictionary Act;  (2) Hobby Lobby’s right to religious freedom is violated, under the Religious Freedom Restoration Act, because the contraceptives requirement for mandatory insurance supplied by employers contravenes the owner’s sincere beliefs; (3) the government did not explore any less burdensome alternatives to the mandate.

More importantly, however, this case shows the extreme ideological ends pursued by the Obama administration through its legal powers. It is thus of a piece with the Noel Canning recess appointments clause case from last Thursday. In both cases, the President pursued extreme arguments in court to advance an ideological agenda — today, it was to sweep religious minorities into ObamaCare; on Thursday, to create a union-friendly NLRB.

In both cases, the policy preference of Democrats were already broadly being applied. Most employers who supply insurance under ObamaCare will not have religious freedom rights at stake. The NLRB and labor law already gives unions broad rights to organize. In order to push its ideology as far as it will go, however, the administration had to pursue even the small number of religious-oriented small businesses to force them into the contraceptive mandate. To guarantee unions a 100 percent win rate (rather than the, say, 75 percent win rate in the NLRB) Obama had to illegally appoint the boards’ officials.

To me, this is President Obama’s fundamental abuse of presidential power. He is not broadly interpreting his powers to respond to emergencies or national security challenges; he is relying on extreme interpretations of them to play small ball politics and notch wins for his most ideological supporters. It is not only a misuse of power, it is also damaging the institution of the presidency — something that will become apparent when the full powers of the office really are required.

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  1. Peter Robinson Contributor
    Peter Robinson

    Two questions, John:

    1)  If the decision was an easy one, what does it say that four justices voted against it–and that even quite informed people in my acquaintance have bitten their fingernails to the very quick, uncertain until the announcement itself of which way Justice Kennedy would vote?  How can we claw our way back to a legal regime in which easy decisions are just that?  (What I’m looking for here is a few words from you that will lower my blood pressure.)

    2)  Your final paragraph worries me.  Correct me here, but it seems as if you’re saying that Obama is damaging the presidency because people like us–that is, us conservatives–are getting riled over his abuses.  You seem to imply, then, that it’s we conservatives who will cause trouble “when the full powers of the office…are required.”  You don’t really mean that, do you?  Or do you?  Are you suggesting here that the Rand Pauls of this world will sooner or later pose a serious constitutional problem?

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  2. user_3444 Coolidge

    According to the WSJ:

    Justice Alito framed the ruling as “very specific” to the case before the court, and argued that no women would be burdened with the costs of contraceptives because their employers objected.

    Instead, he suggested that the Obama administration extend to for-profit companies the same accommodation it had made to religiously affiliated nonprofits that object to contraception: requiring that insurers provide contraceptives without charging premiums to employers or copayments to individuals.

    Do I understand correctly that even after this ruling Hobby Lobby employees will still get “free” contraceptives with their employer-sponsored insurance?  If so, the legal fiction that that the insurance companies will now be paying for it, and that they won’t find a way to pass this cost on to Hobby Lobby in other ways, strikes me as a fig leaf and a rather hollow victory.

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  3. user_86050 Inactive

    It strikes me that the Obama Administration’s perspective is idealist and absolutist. They interpret their authority to “provide for the general welfare” to trump any and all other authority. They consider the Constitution their warrant to fix every problem, which functionally takes precedence over any other consideration. It’s the progressive mentality, that government is entitled to draw as much power as it wants. 

    The notion of religious freedom is really the contradiction of that. It says that government, even in the pursuit of admirable ends, cannot cross certain lines. That’s the idea behind the Bill of Rights; we don’t care how urgent or how wonderful the executive thinks his policy is, he just can’t cross these lines. 

    Can a government interest become compelling, and override some beliefs? Perhaps, but remember, this mandate wasn’t passed in the original law. It was a HHS regulation added later. A few who voted for Obamacare said that had it originally included this mandate, they wouldn’t have passed it. Which means that the mandate itself wasn’t considered a necessary, and therefore compelling, interest by the people who passed it.

    Obama had no warrant to be absolutist.

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  4. hawk@haakondahl.com Inactive

    I view this as an ill-starred victory; a tactical win that is welcome for what it is, but agonizing for what it is not.  We are cementing in place a strategic defeat by learning to coexist with Leviathan, and I don’t see it ending well.  That misbegotten law is warping our economy and our healthcare system, and every day that it stands is a day we lost.

    The ruling is a win, so yay.  But where does (say) Boeing go to get its customers back?

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  5. george.tobin@yahoo.com Moderator

    I am confused. I turned on MSNBC when I got home from work and as I understand it, SCOTUS ruled that employers can rape and sell into white slavery all gyno-American employees but only if the employer is a practicing Christian. Yoo seems to have missed the key portions of Alito’s opinion.

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  6. Larry3435 Member

    Old Bathos:

    I am confused. I turned on MSNBC when I got home from work and as I understand it, SCOTUS ruled that employers can rape and sell into white slavery all gyno-American employees but only if the employer is a practicing Christian. Yoo seems to have missed the key portions of Alito’s opinion.

     I’m horrified by your comment.  You turned on MSNBC?????

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  7. user_199279 Coolidge

    To me the steps taken by Barry are just like the regulations written by Sebelius, et al, after the passage of Obamacare:  Incremental barnacles that grow and cement the size of gov’t.  Barry’s actions with the recess appointments are a perfect example of this, as John points out – he was just slapping more icing, incrementally, onto the NLRB cake to further solidify a horror to the free markets, in order to appease a constituency.  And to further the power of the state, and of Barry’s office.

    Both cases demonstrate, unfortunately, the results of conservatism, broadly:  We are not activists, generally.  The impetus is on the progressive side, to challenge and expand the scope of gov’t outside all rational bounds, which requires us to respond – but after the fact.  After the regulation has been written.  After the law has been effectively amended through the bureaucracy.

    After that, it’s too late – the barnacles are in place.  What we get for “victory” is a barnacle scrub that will only last as long until the next idiotic law/regulation is glued to the hull of the USS United States.

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  8. Julia PA Member
    Julia PA

    John Yoo: It is not only a misuse of power, it is also damaging the institution of the presidency — something that will become apparent when the full powers of the office really are required.

     Obama is the president who cried “wolf.” But if he is a cat with nine-lives…hopefully these recent rulings have used a few of his!

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  9. Leigh Inactive

    Can I ask an ignorant legal question?  The Court ruled based on RFRA, not the First Amendment.  All other things being equal (i.e. ignoring the possibility that Alito couldn’t have gotten a majority on the Free Exercise Clause) was that the right thing to do?

    We’d feel more secure if this were based on the First, not on a law that Congress can change.  But the administration has been reminded that it can’t simply ignore the law as it issues regulations.

    That is, if something is unconstitutional should the Court deal directly with that violation, regardless of what Congress might have said about it in the past?  Or if Congress passes a law explaining and reiterating constitutional principles, is is appropriate for the Court to defer to that?

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  10. Sisyphus Member

    What this case highlights is that the Supreme Court’s previous reckless evisceration of our 1st Amendment rights to religious freedom in the 1980s forced the Congress to pass the RFRA on which this decision was based. If the ObamaCare law had included specific language regarding contraceptives and such, rather than differing the details to mere implementing regulation, as subsequent law ObamaCare would likely have triumphed.

    The Supremes missed an opportunity here to reverse the ludicrous test that laws generally applicable to all people do not infringe on our constitutionally recognized right to the free exercise of religion. Prohibitions against smoking peyote or wearing a yarmike are perfectly acceptible under the test so long as they apply to everyone. Tactically, the RFRA became a necessary but insufficient corrective applied to assure that native tribes could continue to exercise their religions without continued undue and unwarranted federal interference.

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