Hobby Lobby: The magic case

The decision was wildly unpopular among civil libertarians and evangelicals alike. RFRA was passed overwhelmingly — the Senate vote was 98-0, and the law was co-sponsored by Democrat Edward M. Kennedy and Republican Orrin Hatch. The purpose of RFRA was to reverse the Smith decision and establish by statute that if someone’s religious exercise is substantially burdened, he or she will get an exemption unless the government can show that the law fulfills a compelling state interest and is narrowly tailored to protect religious liberty as much as possible. The Supreme Court, angry at being overturned, subsequently limited RFRA to federal law; because the ACA is federal, the law applies here.

In the Hobby Lobby companion case, Conestoga Wood Specialties v. Sebelius, the Mennonite woodworking business also invoked the free exercise clause. The Supreme Court has signaled in recent years that it might be willing to revisit the Smith decision. But that’s unlikely to happen in this case, primarily because adding yet a further wrinkle to this overwhelmingly complex set of issues would probably put the justices over the top. The main religious liberty issue therefore will be the proper interpretation of RFRA. Nevertheless, the feeling that the Smith decision went too far is part of the context for the restoration of a robust sense of religious liberty by the court.

That brings us to contraception, the third issue — not to say third rail — in the case. Polls suggest that even many American lay Catholics are comfortable with birth control. Yet to advocates of religious liberty, contraception functions as a stand-in for abortion. If Congress can lawfully require coverage of contraceptives, they fear, laws mandating abortion coverage must be lawful as well. For their part, women’s rights activists, too, see contraception not only as an important public health issue in its own right, but also as a stalking horse for abortion. Roe v. Wade is still the most controversial decision issued by the Supreme Court in the last half-century. Anytime reproductive rights come before the court, the stakes rise — and so do the justices’ temperatures.

If all this weren’t enough for you, the fourth issue is arguably more important than the first three: whether corporations are people, too. In Citizens United v. FEC, decided in 2010, the Supreme Court held that free-speech rights should extend to corporations because organizing people to speak more effectively in concert was one of the functions that corporations serve. The case — which as interpreted by the lower courts gave us super-PACs — involved a nonprofit corporation, but it extended to for-profit companies as well. Criticized by Obama in the Supreme Court’s face during a State of the Union address, the decision has been a touchstone for those who would brand the Roberts court as activist and pro- corporation.

The Hobby Lobby case requires the justices to decide if the rule they announced for the free speech clause of the First Amendment applies to the free exercise part of the same amendment. For some liberals, this means an opportunity to reargue Citizens United. For conservatives, it’s an opportunity to depict the rights of corporations in a far more attractive light than corporate political speech. Many sincerely see no difference between a company’s owners and the company itself. Liability should be limited, they believe, but not fundamental free exercise rights.

Keeping these four issues distinct will be a challenge for the justices — and that’s just at oral argument. When it comes to the decision, all bets are off.

See also:

• High Court to hear Hobby Lobby case Tuesday
• Supreme Court takes Hobby Lobby case
• Nuns get compromise on PPACA birth-control rule