Let’s first consider the two questions that everybody is asking. The first of these — Can the government force business to purchase a particular insurance product? — is a question for your Facebook friends. It is not before the Supreme Court, which has essentially already decided that, yes, the government can do that. State and federal governments have been regulating things like this for the better part of a century.
A more interesting question that really is before the Court is, do for-profit companies have a right to religious exemptions? This is a very tricky question without an easy answer. Corporations designed to make money clearly do not have the same protected status as individuals practicing their religion, but corporations are made up of people, some of whom do practice religion, and who therefore have rights.But there is a third question at issue as well, and, I think, it is one that deserves our attention: to what extent does religious belief excuse anybody (corporate person or real person) from obeying the law? It is a question they have faced before.
Up until 1990, there was a general assumption among Constitutional-law types that the government had to meet a very strong burden— called “a compelling state interest” — before enforcing laws against people and their specific religious beliefs. The compelling state interest test traces back to the 1963 Sherbert v. Verner decision, which ruled that a Seventh-Day Adventist could not be denied unemployment benefits for refusing to seek work on Saturday, her Sabbath day.
The so-called “Sherbert test” lasted until one of the most controversial decisions of modern times, the 1990 Employment Division, Department of Human Resources of Oregon vs. Smith. This case involved two Native American drug counsellors who were fired, and denied unemployment, for using peyote in a religious ceremony of the Native American Church. Lawyers for the two counsellors argued that the government did not have a compelling state interest in regulating the religious practice of Native Americans.
The Supreme Court, in a decision led by Justice Antonin Scalia, ruled that it did not matter whether or not the state had a compelling interest, because that was not the right test to begin with. All the state had to do was show that the laws were passed without the intent to burden a particular religion. After that, he wrote:
"The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."
In the wake of the Smith decision, Congress passed the Religious Freedom Restoration Act (RFRA) to protect religions from persecution or unnecessary legal burdens.The RFRA, in effect, restores the "compelling state interest test" to individuals and religious organizations. It does not mention corporations.And now we come to the case before the court this term, which petitions the court, for the first time, to grant a Religious Freedom exemption to a corporate entity. The Hobby Lobby case is as unlike the Smith case as any two cases asking the same question could possibly be. The principles in Smith were unemployed members of a minority religion. They were asking for the right to do something that most Americans found weird. Among the many differences The principles in the Hobby Lobby case are millionaire members of a mainstream religion whose beliefs are widely accepted. It is the difference between a religion we like and a religion we don’t.
If yesterday’s questioning at the Supreme Court is any indication. the religious freedoms lost in Smith and restored in RFRA may well be Constitutionalized once again in Sebelius v. Hobby Lobby--with the addition of corporations as a protected religious class. And the driving force in reversing the 25-year-old logic of Justice Antonin Scalia will be... Justice Antonin Scalia--a fact not lost on our newest Justice, Elna Kagan.
One need not construct a parade of horribles to accompany such a ruling--for Justice Scalia constructed this parade a quarter of a century ago: "the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind."--now including exemptions to anyone who owns or runs a corporation.