Six Myths And Facts About The Hobby Lobby Decision

Howard Slugh and Alan Goldsmith Attorney, National Security Professional
Font Size:

Myth: The Supreme Court’s Hobby Lobby decision has opened the floodgates so that any employer can use his religious beliefs to exempt himself from any law he does not want to follow.

Fact: The Religious Freedom Restoration Act (“RFRA”) does not create a blanket protection for any person who claims that a federal law burdens his sincerely held belief. That claim is merely the first step in a court’s analysis. Once a person establishes that such a conflict exists, the government can still win the case if it meets a two-part test, demonstrating that (1) it has a compelling interest in enforcing the law against the plaintiff, and 2) there is no alternate way to advance that interest without equally burdening the plaintiff’s religious liberty.

The second part of the test is called the “least restrictive means” analysis, and it was critical to the Supreme Court’s decision in Hobby Lobby. The Court assumed that the government met the compelling interest part, but held that it failed to meet the “least restrictive means” part because various alternatives existed (more on those alternatives later).

Since all future cases would apply that same two-part test, claims that this decision will allow employers to discriminate on the basis of race or sex are preposterous.  In fact, the Hobby Lobby decision itself notes that “[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” The Supreme Court has established that the government has a compelling interest in preventing or remedying discrimination based on race and sex, and there is no less restrictive way to prevent discrimination than to ban discrimination — even if such a ban conflicts with an employer’s religious beliefs.

There are other cases where the outcome of religion-based objections would be less clear, such as challenges to governmental mandates requiring employers to provide blood transfusions or other medical procedures.  Such cases would be decided by applying the two-part test outlined above on a case-by-case basis.  The test in those cases would not necessarily come out the same way as it did in this case.  As the opinion notes, “[o]ther coverage requirements… may be supported by different interests… and may involve different arguments about the least restrictive means of providing them.” It is impossible to determine the outcome of such future cases in the abstract.

Finally, one should remember that the Religious Freedom Restoration Act (RFRA) only applies in cases where there is a conflict between an existing federal law and a person’s religious beliefs.   If conduct is neither prohibited nor required by federal law, RFRA is irrelevant.  Many items included in critic’s parade of horribles fall into this category.  For example, there is no federal law prohibiting private employers from discriminating on the basis of sexual orientation, and therefore RFRA and this case are entirely inapplicable to that situation.

Myth: The Hobby Lobby decision will put employers between women and their doctors and prevent women from accessing birth control.

Fact: Neither Hobby Lobby, nor any of the plaintiffs in related cases, sued to prevent women from accessing or using contraceptives, and nothing in the Supreme Court’s opinion has to led to that outcome. No employer could ever use RFRA to prevent an employee from using contraceptives; the Supreme Court has previously established that the Constitution provides a right to use contraceptives. The Hobby Lobby decision does not allow employers to dictate an employee’s medical decisions — the Court simply held that the government cannot dragoon an employer into paying for those medical decisions, in violation of her religious beliefs, where less restrictive alternatives exist. As noted above, the court’s opinion was predicated on the existence of a less restrictive alternative that would “ensur[e] that employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.”

One of the less restrictive alternatives referenced in the Court’s opinion is extending to all objecting companies the same accommodation provided to non-profit companies. Under this accommodation, if a company certifies that it has a religious objection to parts of the mandate, the company’s insurance provider is legally required to supply the drugs without assistance from the employer. The Department of Health and Human Services has stated, on numerous occasions, that this accommodation would cost the government and/or insurance companies nothing. The Supreme Court noted that if this accommodation is extended, the effect on women “employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”

These cases are not a challenge to the right to use or access contraceptives — they are merely a challenge to one mechanism by which such contraceptives may be provided.

Myth: Hobby Lobby and the underlying Religious Freedom Restoration Act are just a giveaway to some Christian groups, and the Court’s decision would have come out differently if the plaintiffs had not been Christians.

Fact: The protections of the RFRA apply to people of all faiths. These protections apply both in theory and in practice. For example, in 2006 the Supreme Court decided the RFRA protected the right of adherents of a Brazilian-origin religion to use certain drugs, banned by the Controlled Substances Act, as a part of their religious rituals. Courts have frequently used RFRA and a similar law which applies to the states, the Religious Land Use and Institutionalized Persons Act (RLUIPA), to protect non-Christian groups including Muslims, Jews, and Wiccans.

Myth: If a court were to use a religious liberty law to protect Muslims, Hobby Lobby’s supporters would be outraged rather than relieved.

Fact: Next year, the Supreme Court will decide the case of a Muslim man who is challenging a prison’s ban on facial hair under RLUIPA. The same people who supported Hobby Lobby have lined up to support him. In fact, he is represented by the Beckett Fund for Religious Liberty, the very same lawyers who represented Hobby Lobby.

Myth: Hobby Lobby’s purported religious belief cannot possibly be sincere because it pays for coverage that provides Viagra and vasectomies.

Fact: Hobby Lobby only objects to paying for insurance coverage for drugs and devices that can damage a fertilized egg. They view the destruction of a fertilized egg as murder. No one claims that Viagra or vasectomies can harm a fertilized egg; therefore, it is entirely consistent that Hobby Lobby would pay for insurance coverage that includes those items, just as it pays for 16 different forms of contraception.

Some critics of the case claim that the four drugs to which Hobby Lobby objects merely prevent fertilization and therefore cannot damage a fertilized egg. This may be a matter of some dispute, but the Department of Health and Human Services, in its brief for this case, admitted that the drugs can “inhibit implantation” of a fertilized egg. Even if this is disputable, it is quite understandable that Hobby Lobby would seek to avoid paying for something which both the HHS and FDA admit may cause what it considers murder. As a legal matter, the dispute is irrelevant to this case since the parties agreed that the drugs can function in this manner.

This myth is not only factually wrong but pernicious, implying that any religious belief that does not make logical sense to some or all non-believers cannot possibly be sincerely held — and therefore should not be subject to protection from governmental coercion. As a diverse and tolerant country, America cannot adopt a policy that the only religious beliefs worthy of protection are those that seem logical to all of its citizens. Imagine if such a policy were applied to freedom of speech — that you could say or write something without fear of governmental persecution, but only if what you said or wrote made logical sense to most people. Some freedom. Freedom includes the right to be wrong or unpopular, and it is precisely the most controversial and unpopular beliefs that need the most protection.

Myth: Hobby Lobby is hypocritical because they do business in China, a country which uses forced abortions and sterilizations to control its population.

Fact: Hobby Lobby employs Chinese citizens, not the Chinese government. The Chinese government is guilty of committing horrifying crimes against the people of China, including forced abortions. However, working with Chinese citizens does not make one complicit in the crimes being committed against those people. In fact, one of the principles underlying long-term U.S. policy on China is that engaging with China will eventually help to ameliorate the suffering of the people of China. One can debate American foreign policy, but our policy since the Nixon administration has been that engagement is the most effective method for bringing about a better life for the Chinese people.

Howard Slugh is an attorney in Washington, D.C.  Alan Goldsmith is a national security professional in the Washington, D.C. area who served on the staff of the House Foreign Affairs Committee from 2007 to 2013.