Who Really Lost in Hobby Lobby

Win some, lose some.

Balancing the right to religious freedom with the need for equal treatment under the law, Justice Anthony Kennedy noted today with characteristic blandness, "can be difficult." It gets more difficult still when the U.S. Supreme Court rules that "closely held corporations" can refuse on religious grounds to offer their employees contraception coverage.

The 5-4 decision, which runs 89 pages (including a 35-page dissent), is a messy, sprawling affair. The majority insists that its reach is narrow, while the dissent holds otherwise. What's clear is that the ruling will needlessly complicate not only constitutional and corporate law but also -- at least as significant -- health care for women who work at such companies.

Hobby Lobby's evangelical Christian owners objected to a provision in the Affordable Care Act that required it to provide its employees access to certain methods of birth control. The company objected to four types of contraception that it perceived as tantamount to abortion.

The majority ruling, written by Justice Samuel Alito, found that under the Religious Freedom Restoration Act of 1993, Hobby Lobby cannot be compelled to provide contraception and that the government could find alternative means to make those services available to the company's employees. In effect, by claiming a religious objection, Hobby Lobby can shift those costs either to the government or to a private insurer.

After having granted corporations political rights under its Citizens United ruling, the court has now granted companies religious rights. The court took pains to stress that Hobby Lobby is "closely held," and that its ruling applies not to publicly traded companies but to those "owned and controlled by members of a single family." But as Justice Ruth Bader Ginsburg noted in her dissent, the court's logic "extends to corporations of any size, public or private." And the court made no similar distinction on speech rights, for example.

A pluralistic democracy that values religious freedom requires serious public accommodation of religious belief. That is why the Affordable Care Act exempted expressly religious organizations from certain provisions they found objectionable.

But not every objection can be accommodated, and not every religious person can have the laws tailored to his or her individual beliefs. This dilemma is exacerbated when corporations are granted religious liberty. Exactly which ones deserve exactly how much is now sure to be the subject of future Supreme Court jurisprudence.

--Editors: Francis Wilkinson, Michael Newman.

To contact the editor on this story:
David Shipley at davidshipley@bloomberg.net