Corporations race into Ginsburg's 'minefield' to claim post-Hobby Lobby religious exemptions

The 5-4 majority in the Supreme Court’s ruling in the Hobby Lobby case claimed the decision was narrowly focused on closely held corporations that objected to the Affordable Care Act’s contraception mandate on religious grounds.

Justice Ruth Bader Ginsburg warned in a scathing, 35-page dissent that her colleagues had “ventured into a minefield” with their ruling, arguing that the majority had invited “for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.”

It took only one day to prove her predictions accurate.

The court on Tuesday, the day after its ruling, ordered three appeals courts to reconsider challenges by corporations that objected to providing insurance that covers any contraceptive services – not just the four contraception methods covered in the Hobby Lobby case.

The plaintiffs in all three of those cases are Catholic business owners, including the Michigan-based organic food company Eden Foods.

“I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control,” said Michael Potter, founder of Eden Foods. “What gives them the right to tell me that I have to do that?”

The appeals court that rejected Potter’s motion argued the business owner’s claims more closely resembled “a laissez-faire, anti-government screed” than a religious objection – although the Supreme Court has asked the lower court to reconsider his arguments.

The Supreme Court also declined to review a government petition to overturn lower court rulings that upheld religiously based challenges to all preventative services under the Obamacare mandate.

Should religious beliefs be subject to challenge?

The ruling takes claims of religious scruples for granted, wrote columnist Michael Hiltzik of the Los Angeles Times.

“But how are government agencies or the courts to know when claims of religious piety are just pretexts for some other viewpoint, such as libertarianism or misogyny?” Hiltzik continued.

A federal judge in one of those cases reopened by the Supreme Court wrote in her opinion that the sincerity of the plaintiff’s religious beliefs were “unchallenged,” while the theology behind Catholic teachings on contraception were “unchallengeable.”

Hiltzik argued that those religious claims should, however, be subject to challenge.

“Shouldn't the courts, at the very least, determine if a family-owned company follows its religious precepts consistently?” Hiltzik asked. “If this were the test, by the way, Hobby Lobby itself might fail: its 401(k) plan for employees has invested via its mutual funds in companies that manufacture and distribute precisely those drugs and devices that it objects to providing via its health insurance plan.”

That investment could violate teachings in a Catholic moral manual cited by Hobby Lobby’s own attorneys and noted by Justice Samuel Alito in his opinion to show the contraception mandate placed a "substantial burden" on their religious expression, and therefore violated the Religious Freedom Restoration Act.

Legal argument rebutted by moral theology

Alito cited Father Henry Davis’s 1935 Moral and Pastoral Theology to demonstrate “the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.”

The conservative Catholic justice concluded the court had no authority to determine whether that burden was substantial or not, and should instead defer to the moral judgment of Hobby Lobby’s owners.

“Yet interpreting statutory language like ‘substantial burden’ is precisely what the Court is supposed to do,” wrote Leslie C. Griffin, a law professor at the University of California, Irvine, and the University of Nevada, Las Vegas.

Ginsburg described the Hobby Lobby ruling as “a decision of startling breadth” -- and that might be an understatement.

Already, the Becket Fund, a religious law firm that represented Hobby Lobby, lists 49 pending federal cases involving for-profit companies claiming religious objections to the ACA and another 51 that involve nonprofit organizations.

Critics have said the majority based its ruling on faulty science, arguing that IUDs and emergency contraceptives do not cause abortion – as Hobby Lobby’s owners claimed to justify their religious objection.

Alito ruled that courts had no authority to tell the craft store’s owners “their beliefs are flawed,” although he insisted the ruling offered no similar “shield” to other forms of discrimination.

However, a group of religious leaders on Wednesday asked the Obama administration to exempt them from an executive order barring federal contractors from discriminating against LGBT workers.

Rick Warren, pastor of Saddleback Church in California, signed on to a letter sent by Catholic Charities and other faith-based groups seeking a religious exemption to the order.

“Without a robust religious exemption, like the provisions in the Senate-passed [Employment Non-Discrimination Act], this expansion of hiring rights will come at an unreasonable cost to the common good, national unity and religious freedom,” the faith-based group wrote.