Hobby Lobby and the perils of conservative judicial activism

Decision expands view of religious freedom

WASHINGTON, D.C. - The Five Catholic Men otherwise known as the conservative majority on the Roberts Supreme Court have ordained a novel and expansive view of religious liberty in their ruling in the Hobby Lobby case. It is likely to lead to lawsuits and legal arguments as religious believers seek to be exempted from laws and protected from contact with behaviors they find offensive.  It is certain that this is a concept of religious liberty far from the traditional Constitutional one that has served quite well for the past couple of centuries.

There is some irony.  Usually it is conservatives who condemn expansive views of rights as liberal forms of judicial activism. The poster child for that is the right to privacy, which conservatives tend to see as a right not enumerated in the Constitution but invented by liberals to further various social goals.

In the Hobby Lobby case, liberals see the Court’s expansive view of religious liberty as something invented by conservatives to fight against liberal social goals. 

In this case, the Affordable Care Act had a measure to ensure insurance coverage for women’s contraception.  The owner’s of Hobby Lobby objected. They argued that it was their religious belief that some forms of contraception were tantamount to abortion and it would burden their free exercise of religion to provide this insurance to employees. The Supreme Court agreed.

The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” There is no way to interpret those words to conclude that a law requiring businesses to provide health insurance is a prohibition on the free exercise of religion.  And indeed the Hobby Lobby was not a constitutional ruling but a statutory one; the authority for the majority was not the Constitution but a law, the Religious Freedom Restoration Act of 1993 (RFRA).

Hobby Lobby and its owners are not claiming they are being prohibited from believing what they want or worshipping how they want.  No, they are saying when they, as a corporation, enter the commercial world, they want protection from laws that will connect them, however indirectly, to offensive behavior – in this case the use of contraception by employees or their kin.  The Court agreed and said for the first time ever that corporations can have religious rights just like individuals. This is far from the First Amendment and religious liberty as traditionally understood.

The court majority insists the Hobby Lobby is a narrow ruling applying only to this case. But no one on either side agrees. That is because the logic the court used in Hobby Lobby can be extended to many situations – and that is what future litigants will do.

Just one example:  If gay marriage violates a business’ religious beliefs, the logic of Hobby Lobby says they should be exempt from discrimination law if it refuses to provides service to gay weddings.  This is not a hypothetical example; there are legal fights about this across the country.

Conservatives are wary about expanding rights and traditional interpretations of them because the effects are unpredictable as times and mores change. They are right.

Dick Meyer is Chief Washington Correspondent for Scripps News. An experienced writer, reporter and author, Meyer was executive producer for the BBC's news services in America, NPR's executive editor and editorial director of CBSNews.com. Meyer also wrote a book on American culture and politics,  "Why We Hate Us: American Discontent in the New Millennium"  (Crown Publishing/Random House, August 2008).

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