The Supreme Court finished its term with a vitally important – and unfortunate – decision concerning religious freedom.
In Burwell v. Hobby Lobby, the court ruled 5-4 that for-profit corporations could opt out of generally applicable laws if they could demonstrate that abiding by the law would “substantially burden” their free exercise of religion. The high court ruled that Hobby Lobby and other like-minded businesses could exempt themselves from the Affordable Care Act’s requirements concerning contraception.
Hobby Lobby’s owners argued that the ACA substantially burdened their religious freedom because its requirements were objectionable to their beliefs. In this respect, the case seemed to be a classic example of a religious dissenter confronting the power of government. It was not. Instead, it embodied a clash of visions of religious freedom. The court had to choose between them.
Compliance with the ACA is not a burden on religious practice. If you choose to open a business, you must comply with rules of the marketplace that include everything from building codes to sanitation rules to employment laws. Abiding by provisions of the ACA that one does not like is no more of a burden on religious freedom than complying with speed limits or paying tolls when you are on the road.
Hobby Lobby argued that the Religious Freedom Restoration Act exempts it from religiously objectionable laws. In agreeing with this argument, the court deviated radically from prior rulings dealing with religious use of drugs in Oregon (Employment Division v. Smith) and religious exemptions from historical preservation laws (City of Boerne v. Flores).
In those cases, the court ruled that it was contrary to religious equality to privilege religious exemptions from laws. Thus, it would be unfair to allow religious groups to use drugs with impunity while subjecting nonbelievers to criminal prosecution. It would be unfair to allow a church to ignore zoning laws while forcing a neighboring business to abide by them. In siding with Hobby Lobby, the court has opened the door to religious exemptions that it had previously denied.
More important, Hobby Lobby’s exemption constitutes a great potential infringement on the beliefs (religious or not) of employees who do not share their employers’ convictions. In essence, siding with Hobby Lobby enables businesses to qualify the terms of employment on the basis of their owners’ or board members’ religious beliefs.
In many ways, the decision flies in the face of some of the great civil rights decisions of the 20th century. Under the last vestiges of Jim Crow, some business owners sought to deny African Americans (or anyone else) employment, entry into their businesses, service at lunch counters, hotels, movie theaters and so forth on the premise that a business is one’s private property and that the owner is free to serve or deny service to whomever he or she chose.
The court ruled in all of those cases that when you enter into the marketplace, you must leave some of your private beliefs and convictions behind – regardless of their source – and play by generally applicable rules of fairness.
Of course, religious convictions and discrimination are radically different. But, when it comes to employment, business, or access to government benefits, neither can serve as a barrier to customers or employees.
The court did emphasize that the decision applies only to the contraception requirement. Nonetheless, the decision encourages any business owner with a religious objection to a law or government program to look to secure an exemption. Workers could gain or lose rights and access to government benefits whenever they change jobs or employers or even if their company is purchased or taken over.
No doubt, Hobby Lobby’s defenders will celebrate the decision as a great victory for religious freedom.
In fact, it is the opposite: it will create religious tension where there now is none and it will ensure that access to the marketplace and government benefits is subject to religious restrictions. This is an unfortunate decision. Let’s hope the Supreme Court has the chance to revisit – and reverse – it soon.
The recent survey by Pew (http://www.people-press.org/2014/06/12/political-polarization-in-the-american-public/) has folks wondering about the direction U.S> Politics is taking. America has a very moderate political tradition. It embodies an institutional and historical rejection of European party politics. During the Founding Era, James Madison wrote his celebrated Federalist 10 in which he lamented the evils of faction. Alas, they are necessary to politics and include the notion of political parties. (Madison later acknowledged the necessity of political parties).
But, the American political system is designed to make it difficult for third or minor parties to succeed. In recent decades we have seen independent presidential candidates such as John Anderson and Ross Perot rise and fall. The winner-take all electoral system is designed to defeat small ideological parties because it is nearly impossible for them to win.
Some scholars celebrate this. It prevents the proliferation of narrow, ideologically distinct political parties (such as those that might spring from right-wing movements like the Tea Party) and forces such movements to join the ranks of the two larger parties, moderate their views and form successful governing coalitions under the umbrella of the Democrats or Republicans.
Unfortunately, there is no doubt that the major parties have atrophied as a result of the lack of true challenges outside of the duopoly they operate. Campaign finance laws favor the major parties. Legislative and congressional districts are gerrymandered to ensure that only Democrats or Republicans can win. And, the winner take all electoral system dooms third parties to failure in the long run.
We could change all this. American cites use and experiment with alternative electoral systems that enable small parties to grow. Europe has had multiparty systems for some time and European democracy flourishes.
Alas, as we have seen in the wake of the defeat of Eric Cantor, as soon as the major parties perceive a threat to their duopoly, they can look to close ranks (or, in this case, the nomination process) to prevent small parties from gaining power. Ironically, in the land of the free market, the political marketplace has the highest barriers to entry.