(This piece reflects the opinion of the author, not necessarily that of the Center for Inquiry)

In some ways, you have to hand it to Justice Alito. It is uncommon for a Supreme Court Justice to get every single question in a case wrong, but that is exactly what the newest member of the Court’s conservative majority managed with the contraception mandate cases. Let’s look at what Alito had to decide:

· Do for-profit corporations have standing to sue under RFRA?

· Did Hobby Lobby (or their owners) have a ‘sincere religious belief’ here?

· Was that sincere religious belief ‘substantially burdened’?

· Was the mandate pursuing a ‘compelling government interest’?

· Was the mandate the ‘least restrictive’ method of meeting that interest?

· Finally, should Alito have heard the case at all or should he (and other members of the Court) have recused himself?

Justice Ginsburg, in her dissent, expressed far more ably than I ever can the flaws in Alito’s opinion. But let’s recap a little.

Standing

According to the majority, for-profit corporations now have religious freedom rights. Commentators have been quick to point out that Alito sought to restrict this to closely held companies (which includes some of America’s largest corporations, such as Koch Industries and Bechtel); in the opinion the only thing he says regarding publicly traded corporations is he doesn’t think they will apply for such exemptions.

Oddly enough this doesn’t fill me with a great degree of confidence. The problem is, every piece of legislative history, and there is plenty of it, makes clear that RFRA was not intended to cover for-profit corporations. But the majority decided to play its textualist reindeer games, and subvert the clear intention of Congress (the elected branch) and instead impose its own view on the country, and elevate corporations to the same level, if not higher than, real people. I am not sure what will happen when Dell or Dole Foods attends your church next Sunday and sits in the pew next to you, but I can’t imagine the parking situation will be improved. Anyway, through a breathtaking piece of judicial activism on the part of the conservative majority, corporations now have free exercise of religion. Or at least Christian owned ones do. We need to wait and see if a Muslim-owned corporation would have been given the same leeway by the Court.

Sincerity of Belief

The Administration didn’t challenge Hobby Lobby here, and the government attorneys as well as the Court could not stop falling over themselves to congratulate the Greens, owners of Hobby Lobby, on their piety and devout beliefs. Well, it is time to call shenanigans on that. Hobby Lobby, as has been shown, has invested in excess of $73 million in companies that manufacture the very types of contraception the Greens claim are so offensive to them. So, in the Brave New World of corporate religious exercise rights, making money off something is just fine and dandy, but providing insurance for others to use it will damn you to hell. This belief doesn’t bear up to scrutiny, and the case should have gone no further once it was clear that Hobby Lobby’s desire here was scoring a point not defending a genuine belief.

Substantial Burden

Alito here is utterly dismissive of arguments made by the Administration that the separation between the provision of the service and the decision to use said service isolates the employer from responsibility. According to Alito, all we need to do is look and see if there is a monetary fine, and if so, we simply trust the religious group to say if they are burdened. No other area of law works in that way, and there is no reason to do that here. Religious groups should not be permitted to create their own realities. Just because the Greens believe that the drugs involved here cause abortions doesn’t make it so, any more than Jenny McCarthy believing vaccines cause autism makes that the case. The Greens’ entire opposition to these forms of birth control is based on flawed, bogus pseudoscience. This should not be written into the law.

Beyond this, Congress consciously and deliberately added the word ‘substantially’ to RFRA. Alito would have us believe this word is meaningless, and that any burden claimed by a religious group is sufficient. But words have meanings, and they are placed in laws for reasons. The idea that simply because a church claims it was burdened, it could be exempt from ANY law without consideration of whether there actually is an impact on people’s beliefs is so far from the original intention of RFRA it beggars belief.

Compelling Government Interest

Here Alito really shows his colors. Once again, the government’s arguments are waved aside as irrelevant. The reams of facts and figures showing how women are discriminated against in health care, and pay 68% more out of pocket than men, and how reproductive health is perhaps the most central factor in equality for women is dismissed. All because a corporation that profits from making contraceptives doesn’t want to provide them, and five men agree. In my years of reading legal opinions, I can’t think of a dissent that so surgically eviscerates an opinion than Justice Ginsburg’s does on this point.

Least Restrictive Method

Let the government pay for it! This was, for sure, not the cry many of us expected from the right wing of the Court, but there we have it. The problem is, as the dissent pointed out, the government can ALWAYS be called on to pick up the slack. By claiming this as a less restrictive alternative, the majority has created an opt-out clause for religion in every situation. It will always be ‘less restrictive’ to have the government pay for it. Which, of course, means have other taxpayers pay for it. Which means subsidizing the religious beliefs of some with the public purse. I guess that Establishment Clause was there for decoration.

Should Alito have recused himself?

This is where things get really interesting. Given Alito’s theory of causation, that providing insurance was a substantial burden on the Greens because down the road it could lead to the use of certain drugs, couldn’t Alito (and Scalia, Roberts, Kennedy, and Thomas) be equally responsible? Had they upheld the mandate, they would be enabling women to use these drugs in precisely the same fashion as would the Greens. And these drugs are opposed by the Catholic Church, which views their use as a sin. Indeed, politicians who support their availability have been denied communion by the Catholic Church. So Alito (along with Scalia, Roberts, Kennedy, and Thomas) faced a decision as a practicing Catholic – ruling against Hobby Lobby would expose his soul to eternal damnation. The idea that this would not lead him to prejudge the case is less than plausible. Unless, of course, he felt that his legal ruling was too attenuated from the decision to use a form of birth control that finding for the Administration wouldn’t have been sinful…