Still more pronounced, however, is the evident aversion among prominent progressives to living in a society with those who disagree with them about religion and reproduction. So great is their distaste for the diversity of views characteristic of a liberal democracy and so strong is their resolve to control the conduct of others that they are willing to mischaracterize the other side’s opinions, warp the facts, and politicize the law.
Progressives are fond of saying that they stand for empathy and compromise, and are quick to blame conservatives for polarizing our politics. Their feverish reaction last week to the Supreme Court’s thoughtful 5-4 decision in Burwell v. Hobby Lobby Stores, Inc. shows that progressives could use more of the virtues they claim as their own.
The case involves three family-run, for-profit corporations. Norman and Elizabeth Hahn and their three sons own and operate Conestoga Wood Specialties. David and Barbara Green and their three children run Hobby Lobby, a nationwide chain of arts and crafts stores, and an affiliated business, Mardel, a Christian bookstore.
In originally separate lawsuits, the Hahns and Greens contended that under the 2010 Affordable Care Act the Department of Health and Human Services promulgated regulations that unlawfully required their companies to pay for insurance plans that included four FDA-approved contraceptives that have the potential to prevent the implantation of a fertilized egg—two types of the so-called morning-after pill and two types of intrauterine devices. Facilitating the use of these contraceptives violated the Hahns’ and Greens’ sincerely held religious belief that life begins at conception. To the other 16 forms of FDA-approved contraception that HHS requires insurance providers to cover, however, the Hahns and Greens had no objection, and their companies’ coverage of them was unaffected by the court’s decision.
The five more conservative justices cautiously agreed with the Hahns and Greens that the regulations infringed their religious liberty. In the principal dissent, the four more liberal justices strongly disagreed. Progressive journalists went ballistic.
“This should be a real wake-up call to every woman in America that the Supreme Court is at war with women,” thundered MSNBC’s easily excitable Ed Schultz.
The usually less excitable Steve Coll, dean of the Columbia Journalism School, exclaimed in the New Yorker that the Hobby Lobby decision could empower Taliban-like Muslims to organize in America closely held corporations that could provide insurance coverage to employees that excluded polio inoculations.
Writing in Salon, left-leaning columnist Paul Rosenberg hit on the “theocracy” theme, too. Hobby Lobby’s assertion of deeply held religious beliefs, he wrote, are “transparently bogus.” What is really happening is religious “tyrants” are imposing “slavery” on the majority, courtesy of five Supreme Court justices willing to rewrite “decades or centuries of precedent to further empower the most powerful elements in our society.”
The decision “is wrong!” tweeted syndicated columnist and frequent television commentator Donna Brazile. “Your boss will now get in your personal business.”
Well, no.
Writing for the majority, Justice Samuel Alito held that the HHS requirement that the Hahns and the Greens provide health insurance plans that include the four forms of contraception in question violated the Religious Freedom Restoration Act. Passed by a unanimous House and a nearly unanimous Senate, RFRA was signed into law by President Clinton in November 1993. RFRA prohibits the federal government from taking actions that impose substantial burdens on a person’s exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.
The law reaffirms both the high importance the nation’s constitutional system attaches to religious liberty and its commitment to accommodation, balance, and calibration.
So too does Justice Alito’s carefully argued opinion, which, in response to the dissent’s wrongheaded criticisms, emphasizes a number of crucial points.
First, treating corporations as persons with rights involves a familiar form of legal reasoning whose purpose is to vindicate the rights of the persons who own and control corporations.
Second, there is no sound legal reason to deny to for-profit corporations the sort of exemption HHS had already implemented for nonprofit organizations.