Liberals should spend less time lauding the dissents in last week’s Hobby Lobby decision by the U.S. Supreme Court and more time reading them. If they did, they’d notice that some of their main arguments find little support – even from liberal justices.
The Obama administration has sought to require almost all employers that offer health insurance to cover contraceptives. The court’s majority ruled that Hobby Lobby Stores Inc. and similar companies could refuse to cover contraceptives to which they have religious objections.
Many liberals say that this ruling was flawed because the Religious Freedom Restoration Act – the 1993 law the case turned on – doesn’t protect for-profit corporations. Yet only two of the justices took that view; the other two dissenters refused to endorse it.
Reading the dissenters would also keep people from misunderstanding the court’s subsequent ruling on Wheaton College, which has led to a similar liberal freak-out. The school wasn’t subject to the same contraceptive mandate as Hobby Lobby. Instead, it qualified for what the White House calls an “accommodation”: It would merely have to sign a form authorizing others to provide the contraceptive coverage.
The evangelical school’s representatives objected, saying that signing the form would itself violate their religious beliefs. On Thursday, the court said that Wheaton didn’t have to sign the form until its case had been heard in court.
Three dissenting justices – Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor – accused the majority of going back on its word. Supposedly the majority had blessed the accommodation in the Hobby Lobby case and was now showing “disregard” for its own precedent.
Liberal commentators went nuts. Dahlia Lithwick and Sonja West, in Slate, attacked the court for declaring the accommodation “unconstitutional.”
The court did no such thing. It didn’t even declare the accommodation illegal. It lifted the requirement temporarily while litigation proceeds. The majority opinion in the Hobby Lobby case specifically declared that it wasn’t deciding whether the accommodation was legal, noting that other lawsuits on that issue were before the court and that another organization, Little Sisters of the Poor, had been told it didn’t have to sign the form until these lawsuits are settled.
The Religious Freedom Restoration Act says that when the government imposes a substantial burden on the exercise of religion, it has to show that it has used the least burdensome means possible. The majority relied on the administration’s account that the accommodation is less burdensome than the full-blown mandate, and it said the mandate was therefore illegal. That didn’t mean that the accommodation itself passed legal muster.
The three justices who dissented on Wheaton, on the other hand, have gone in a few days from complaining that the majority hadn’t blessed the accommodation to complaining that they had taken back their blessing.
The language they use seems designed to fool gullible or ignorant commentators. Drum condemned the “PR games” at the Supreme Court. He’s right about that; he just has the wrong justices in mind.
Ramesh Ponnuru, is a senior editor for National Review.
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