Hobby Lobby – Where Alito (and the Administration) Went Wrong

July 1, 2014

(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.


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…


#1 Kathi Wise (Guest) on Tuesday July 01, 2014 at 1:25pm

Wait a minute. Do I have this right? The objection to providing the specified birth control medications was because the Greens believe they cause abortions which is against their “sincerely held religious beliefs,” therefore Alito says they are not required to provide said medications. But Alito suggests that the same medications can be paid for by the government, so he must not consider said medications abortificants because the Hyde Amendment would otherwise prevent using federal funds to provide them.  Too convoluted for understanding.

#2 Max (Guest) on Tuesday July 01, 2014 at 3:28pm

So the government can’t force for-profit corporations to pay for things their owners morally object to, but it can force taxpayers to pay for them. And not just for birth control, but also vaccines, chaplains, wars, United Nations, you name it. If people could opt out, they’d morally object to everything.

#3 Ophelia Benson on Thursday July 03, 2014 at 12:37pm

No, wait, they had a sincere religious belief. It’s the belief that people who follow the majority religion should be able to impose the strictures of that religion on everyone else. Surely that counts as a sincere religious belief in anyone’s book!


#4 Ann Kah on Friday July 04, 2014 at 1:00am

An odd feature of this decision was the consideration of birth control to be a factor uniquely singled out for exceptions to the law. What justification was given for that special status?

#5 cantrl on Friday July 04, 2014 at 2:08pm

I am confused about the “sincerity of belief” issue in this case.  The belief that the 4 drugs challenged were abortifacients is not necessarily a religious belief.  Because I could erroneously believe that they are abortifacients (because I do not know or understand the science) even though I am a pro-choice atheist so not concerned about these drugs being covered.  So it does not make sense to me that that belief (ie., about the nature of the drugs in question) is the belief that should be addressed.  The actual religious belief here is that abortion is wrong, yes?  But if that is the belief then certainly the court should have looked at the science and made the determination that the 4 drugs did in fact violate the religious beliefs of plaintiffs, that is, that these drugs cause abortion.  They did not do so and the facts are that these drugs are not abortifacients so I am confused about exactly what the plaintiffs sincerely held beliefs around the drugs are.

Here is a metaphor I came up with.  Suppose a Scientologist employer erroneously believed that Lipitor and other statins were anti-depressants and his belief is sincerely held.  Under Hobby Lobby ruling it seems that he/she could elect not to cover statins in the company’s health insure.

#6 Randy (Guest) on Saturday July 05, 2014 at 7:10pm

What you’ve written under “Standing” doesn’t seem related to Article III standing.

I was expecting you to say that since neither Hobby Lobby nor Conestoga had proven they had funded or definitely will fund an “abortion” (of course at least Hobby Lobby already did this via their retirement fund investments which reveal their “sincerity”) that they had no actual or imminent injury to complain of.  It was all hypothetical.  I would have dismissed the case for lack of standing on that basis.

However, regarding what you did write under “Standing”, I find it hard to dismiss some of what Alito wrote.  Congress may have intended one or another thing, but that is NOT what it wrote in RFRA and RLUIPA (and the Dictionary Act).  The Supreme Court is not there to write the law.  It can strike it down, but it cannot rewrite it.

#7 Randy (Guest) on Saturday July 05, 2014 at 7:27pm

“Should Alito have recused himself?”

No.  Here’s the thing.  The courts have to have judges.  Judges will naturally have various affiliations (sex, race, belief, orientation, etc.) 

If a judge is recused on the basis of one of those protected group memberships on the assumption it will influence his decision one way, the same might be said of the remaining judges in the other direction.  It leads nowhere.

While I totally do not buy that judges are impartial, because the evidence is that they are plainly not impartial, particularly on the Supreme Court, I don’t think this is the sort of thing one ought to recuse for.

Further, the fact that Sotomayor voted the other way is a counterexample to the idea that Catholicism determines the outcome.

Now, all I’ve said assumes the current framework.  I don’t think the court should be made entirely of religious believers, and only from two closely-related religions.  I don’t even believe in the free exercise of religion.  I believe all beliefs should be treated equally, under the same generally-applicable laws, and evidence provided by reality.  I think if a Baptist makes a good Imam, then you must hire that Baptist to be the Imam.

In my world, Alito would never have been appointed to the court at all.

But there he is, and it was proper for him to rule on this case, EVEN THOUGH he revealed his bias (shared with four others) when explaining how the simple act of paying for insurance can be a sin because it might hypothetically enable someone else to have an “abortion”, something which proves there was no Article III standing in this case.

#8 Max (Guest) on Sunday July 06, 2014 at 3:57pm

cantrl, did you not read the paragraph at all? It’s about Hobby Lobby’s hypocrisy, not about about whether the beliefs are scientifically accurate. Namely, if Hobby Lobby’s owners sincerely believed that contraception is immoral, then they wouldn’t invest over $73 million in companies that manufacture those very types of contraception.

#9 cantrl on Monday July 07, 2014 at 3:10am


Yes indeed Hobby Lobby’s hypocrisy (with respect to its investments) certainly adds another dimension to the Court’s sincerity of belief test.  The Court seems to be saying:  Well, so long as the belief is sincerely held we are not going to ask whether or not the belief is fact or evidence based, moreover, we are going to take the plaintiff at its word that the belief is sincerely held without further inquiry.  Really an astonishing precedent!!

#10 cantrl on Monday July 07, 2014 at 3:24am


My understanding was that originally Hobby Lobby planned to challenge coverage for all 20 of the contraceptives required under ACA-compliant policies.  Apparently their lawyers advised them to only challenge the 4 that it (erroneously) believed were abortifacients presumably because they had a better shot at winning that way. 

The Court essentially said

1.  Hobby Lobby believes that abortion is a sin (this is a religious belief)
2.  Hobby Lobby believes that the 4 drugs in question are abortifacients (this is not a religious belief - this is simply a misunderstanding of the nature of the drugs)
3.  Therefore, Hobby Lobby believes it would be a sin to provide coverage for these 4 drugs (so, it would violate its religious freedom to force it to do so)

The problem here is that although #2 is not a religious belief the Court is treating it as if it were a religious belief.  Hence my example of the Scientologist-employer who refuses to offer Lipitor because it erroneously believes Lipitor is an anti-depressant.  Following Hobby Lobby this Court would say, sure, fine you don’t have to cover Lipitor.  And even if the Scientologist-run company invested in companies that produced statins, well, this Court would not look at that.

#11 sahibol (Guest) on Monday July 14, 2014 at 2:45pm

So wait a minute, Alito sitting on the SCOTUS bench violates my sincerely held beliefs. His aouthorship of such opinions places a substantial burden on me. Can I ask that my portion of his salary be withheld? I’m not even a corporation so that should be better no? if not I can have my closely held corporation sue for this belief as well!

@Randy, I think you missed the point, in general we would accept that Alito need now recuse himself, the point was that based on the logic he has used in his ruling, if had applied that logic to himself his only options to avoid hell were, either recuse himself or rule the way he did.

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