Ruth Bader Ginsburg Speaks—Significant Quotes from the Hobby Lobby dissent

Ruth Bader Ginsburg Speaks—Significant Quotes from the Hobby Lobby dissent

“In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

“Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exception from a generally applicable law, whether under the Free Exercise Clause or RFRA.”

“I part ways with Justice Kennedy on the context relevant here.  He sees it as the employers’ ‘exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations.’ . . . I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health hazards employees who do not subscribe to their employers’ religious beliefs.”

“In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations.  One might ask why the separation should hold only when it serves the interest of those who control the corporation.”

“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.  No need to speculate on that, the Court says, for ‘it seems unlikely’ that large corporations ‘will often assert RFRA claims.’ . . . Perhaps so, but as Hobby Lobby’s case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not diffuse. ‘Closely held’ is not synonymous with ‘small.’ Hobby Lobby is hardly the only enterprise of sizable scale that is family owned or closely held.  For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons.”

“Inattentive to this guidance, today’s decision elides entirely the distinction between the sincerity of the challenger’s religious belief and the substantiality of the burden placed on the challenger.

Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial.  The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable.  Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans . . . Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers.  Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens or Hahns, she is of course under no compulsion to use the contraceptives in question….Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.”

“Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslim, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?  According to counsel for Hobby Lobby, ‘each one of these cases . . .would have to be evaluated on its own . . . apply[ing] the compelling interest-least restrictive alternative test. . . . Not much help there for the lower courts bound by today’s decision.”




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