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June 30, 2014 11:52 AM Floodgates Open on Corporate “Religious Liberty”

By Ed Kilgore

And in another 5-4 decision, and another in which Samuel Alito wrote the minority opinion, SCOTUS ruled in Burwell v. Hobby Lobby that “closely-held” for-profit corporations do indeed have “religious liberty” interests, which were indeed impinged upon unnecessarily by the contraception coverage mandate of the Affordable Care Act.

We’ll all be trying to parse the decision, the fifth-vote concurrence by Kennedy, and the dissent written by Ginsburg, to figure out the scope of the decision. It’s noteworthy the opinion relied on a “less-restrictive-means” standard for striking down the mandate, which means other avenues would theoretically be open to the federal government to secure contraception coverage (though obviously not under this Congress). And the majority did make it clear family-owned businesses like the two in this case, not corporations generally, had religious liberty interests.

But it’s also clear this decision will open the floodgates to a potentially immense number of claims by religiously-oriented for-profit corporations that this or that federal law or regulation—especially those involving non-discrimination rules—violate their “religious liberty” under either the Religious Freedom Restoration Act or the First Amendment itself. And again, as in Harris v. Quinn, you have to figure a slight shift in the composition of the Court, and especially the addition of a sixth conservative, could make Hobby Lobby the first step towards a very different constitutional scheme elevating self-designated religious rights over all sorts of citizenship rights and legitimate public interests.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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