Justice Ruth Bader Ginsburg trolls Scalia in blistering dissent of Hobby Lobby ruling

Justice Ruth Bader Ginsburg said the ruling on the Hobby Lobby case was based on a misreading of the Religious Freedom Restoration Act and would likely open the door to a host of unintended consequences.

“Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood – combined with its other errors in construing RFRA – invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith,” she wrote.

The court ruled 5-4 Monday that the government cannot compel closely held corporations with religious owners to provide contraception coverage for its employees.

In a scathing, 35-page dissent, Ginsburg concluded that the contraception mandate did not impose a substantial burden on Hobby Lobby or Conestoga Wood Specialties -- and therefore did not violate the RFRA.

She said the Affordable Care Act required employers to direct money into undifferentiated funds to pay for a wide variety of benefits under comprehensive health plans, and Ginsburg said employees were not obligated to use contraception coverage.

“Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well being,” Ginsburg wrote. “Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence.”

While the court has recognized First Amendment protections for churches and other nonprofit religion-based organizations, Ginsburg noted that no previous court decisions had ever recognized a for-profit corporation’s qualification for religious exemption from any laws.

“The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities,” she wrote.

She said religious organizations exist to foster the interests of people who believe in the same faith principles, but that’s not the case among for-profit corporations – and she said that distinction had been clear for centuries prior to the establishment of the Internal Revenue Service.

“Workers who sustain the operations of those corporations commonly are not drawn from one religious community,” Ginsburg pointed out. “Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations.”

Although previous rulings required employers to accommodate employees’ religious exercise, Ginsburg noted, those accommodations could not come at the expense of other workers.

“The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention,” she said. “One can only wonder why the Court shuts this key difference from sight.”

She said if Congress had wanted RFRA to extend religion-based exemptions to for-profit corporations, which she described as a “huge” change from existing precedent, lawmakers would have said so in the legislation or at least discussed that possibility on the record – which they did not.

“Congress does not ‘hide elephants in mouseholes,’” Ginsburg wrote, quoting a previous decision by Justice Antonin Scalia, who ruled in favor of Hobby Lobby.

Although the ruling has been described as a narrow one, applying only to closely held corporations and the contraception mandate, Ginsburg said its logic extends to corporations of any size, public or private.

“The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public,” she wrote in a footnote. “No need to speculate on that, the Court says, for ‘it seems unlikely’ that large corporation ‘will often assert RFRA claims.’”

She cited in a footnote to this section a Forbes ranking of the largest closely held companies in the U.S., including family-owned candy giant Mars Inc., with 72,000 employees and $33 billion in revenue, and Cargill Inc., with 140,000 employees and $136 billion in revenue.

Koch Industries, which Ginsburg does not single out, is second on that list, with 60,000 employees and $115 billion in revenue.

Ginsburg singled out Justice Anthony Kennedy, who suggested in a concurring opinion that the government could pay for contraception so women could receive free contraception mandate.

“The ACA, however, requires coverage of preventative services through the existing employer-based system of health insurance ‘so that [employees] face minimal logistical and administrative obstacles,’” Ginsburg wrote. “Impeding women’s receipt of benefits ‘by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit’ was scarcely what Congress contemplated.”

She contemplated slippery slope arguments based on the recognition of corporate religious practice.

“Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work?” Ginsburg asked.

She feared the Supreme Court had "ventured into a minefield" with its ruling.

"Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude," Ginsburg wrote.

[Image via Wikipedia Commons]