Hobby Lobby is About Sex, not Abortion

One of the questions in the Hobby Lobby litigation was whether the exemption sought by these companies could be extended to things other than contraception. Could companies whose owners held somewhat less mainstream religious beliefs decide to stop covering, say, blood transfusions, or vaccines? Could religious "freedom" become a shield for racial discrimination? Nope, says Justice Alito. The ruling is strictly limited to contraception. Other medical things like transfusions or vaccines he essentially said would have to be considered in later cases, and might or might not survive the same test that the contraception mandate failed. And he specifically said that racial discrimination in employment practices cannot find support in this decision, that the government's interest in eradicating that evil is strong enough and direct enough that "religious freedom" is no shield against it.

Kevin Drum comments that the logic behind limiting the decision to contraception seems to be about abortion:

I think it's important to recognize what Alito is saying here. Basically, he's making the case that abortion is unique as a religious issue. If you object to anything else on a religious basis, you're probably out of luck. But if you object to abortion on religious grounds, you will be given every possible consideration. Even if your objection is only related to abortion in the most tenuous imaginable way—as it is here, where IUDs are considered to be abortifacients for highly idiosyncratic doctrinal reasons—it will be treated with the utmost deference.

I don't think that's quite right.


To understand why this isn't the right way to view the Court's decision, you have to read the passage Drum quoted from Alito's opinion, and understand what the legal analysis in this case looked like. I'll handle the second part first. The Religious Freedom Restoration Act of 1993 states that "[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability" unless applying that burden to that specific person is "the least restrictive means of furthering [a] compelling governmental interest." (RFRA no longer applies to the states, but it does apply to the federal government because Congress can freely grant exemptions to its own laws [although it shouldn't be able to make ones that violate the Establishment Clause, but that's a whole 'nother issue].)

So here's how this case goes. The federal government requires that employers of a certain size provide health insurance for their employees, and among other things that it include coverage for contraception. Hobby Lobby, a for-profit closely-held corporation whose owners claim to have religious beliefs which conflict with providing such insurance, object, saying this requirement violates RFRA. The first question in the case is whether Hobby Lobby is a "person" for the purposes of RFRA. If they aren't, case dismissed. If they are, the next question is whether this insurance mandate substantially burdens their exercise of religion. If it doesn't, case dismissed. If it does, the next question is whether applying the mandate to Hobby Lobby specifically is in furtherance of a compelling government interest. If it isn't, Hobby Lobby wins. If it is, the next question is whether it is the least restrictive means of furthering that interest. If it is, the government wins; if not, Hobby Lobby wins.

So now let's look at the quote from Alito:

   In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer's religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Now, I haven't read the whole opinion, so I don't know exactly whether Alito predominantly said the government's interest wasn't compelling or that this wasn't the least restrictive means of furthering it. (Kennedy's concurrence suggests that, for him, the latter was the controlling issue, or at least the proper grounds for the decision.) But this paragraph seems to suggest doubt as to both. Some other insurance mandate might survive RFRA analysis, Alito suggests, either by having a stronger government interest behind it or by being more plausibly the least restrictive means.

Except this latter claim is ridiculous. No other analogous insurance mandate could be the least restrictive means, for the reason given in Kennedy's opinion: the government could just pay for that aspect of the coverage itself! That is, in fact, almost certainly what it will do in the aftermath of this decision, probably without even feeling the need to get Congressional authorization, and the truth is that the consequences of the decision for contraception coverage itself are likely to be fairly modest. So if the vaccination case or the blood transfusion case comes up, and reaches the "least restrictive means" part of the analysis, I don't see how the government can win, except insofar as being forced to pay for the stuff itself isn't that much of a loss so long as it actually can do that and Congress won't just obstruct for obstruction's sake.

So it kind of seems like he must be suggesting that the real problem with the contraception mandate is that the government interest isn't strong enough. Note that this is not about the nature of the religious objection! We're past the stage where we analyze the religious objection. Alito seems pretty clearly to be indicating that these other laws, vaccination requirements or blood transfusion requirements or whatever, could also substantially burden a person's, or a corporation's, exercise of religion. Which means the limitation isn't based on the view that religious objections to abortion get a higher status than other religious objections. That can't be the difference, based on how Alito's describing things here. Rather, the difference is that whatever the government interest in providing contraceptive coverage is isn't good enough for Alito. It's not as strong as the interest in "combating the spread of infectious diseases."

Or, to translate a bit, it's not really a health interest. All the government is doing is making it possible for slutty sluts to have sinful, promiscuous sex--and that's certainly not worth burdening our religious consciences over! I mean, that's a somewhat extravagant translation, but I think the sentiment has got to be something like that. (And if you don't think Alito would have such a sentiment, go read his dissent in Windsor. It's kind of shocking that that stuff would find its way into a Supreme Court opinion, like seriously.) What Alito is distinguishing here is the general interest in getting various kinds of medical care and the interest of women in having access to contraception. That is to say, this ruling appears to rest precisely on antifeminism. That's it. Not genuflecting to abortion opposition, not respect for religion. The key legal point is that Samuel Alito just doesn't value the reproductive health rights of women much at all. He doesn't think the government even has a fully, properly compelling interest in protecting them!

Fuck that guy.