The Affordable Care Act requires health insurance policies offered through for-profit corporations to cover prescribed birth control medications and devices. The Religious Freedom Restoration Act of 1993 gives "persons" some leeway in responding to federal regulation if it presents a substantial burden counter to their religious convictions. The owners of Hobby Lobby, a privately-held for-profit corporation, object to some forms of birth control on religious grounds; if Hobby Lobby refuses to cover these, it faces financial penalties under the ACA.

The Supreme Court decision (5-4) delivered today in Sebelius v. Hobby Lobby agrees that the ACA provision presents the Hobby Lobby Corporation with a substantial burden, and that for purposes of the RFRA certain closely held for-profit corporations like Hobby Lobby have the same rights as persons.

Justice Ginsburg, in the dissent offers several counter arguments:

"The exemption sought by Hobby Lobby ... would.deny legions of women who do not hold their employers' beliefs access to contraceptive coverage"

"Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community."

"Any decision to use contraceptives made by a woman covered under Hobby Lobby's ... plan will not be propelled by the Government, it will be the woman's autonomous choice, informed by the physician she consults."

"It bears note in this regard that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage."

"Would the exemption.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 Muslims, Jews, and Hindus); and vaccinations[?].Not much help there for the lower courts bound by today's decision."

"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....The court, I fear, has ventured into a minefield."

Notice that the Supreme Court majority ruled narrowly, on statutory, not constitutional grounds, while the dissent is both sweeping and pragmatic. The gloating on the right and the bemoaning of the decision on the left, however, invoke the First Amendment quite a lot. Eric Posner, on Slate, has pointed out (prior to the announcement of the decision) that when the First Amendment is used to protect the rights of ethnic and sexual minorities against majoritarian tyranny, Liberals applaud. But in an increasingly secular nation, the use of Constitutional arguments to protect the rights of the religious are not taken as seriously.

The Green family, who own the Hobby Lobby chain, objected to offering coverage for four specific forms of contraception--two morning after pills, and two forms of IUD--out of approximately twenty kinds that were covered. The contention is that these are abortifacients, not truly contraceptive. This is not true, which was pointed out during argument, but Justice Alito rebutted that the validity of the religious belief was not at issue. Nor was the sincerity of the belief itself.

This is the minefield to which Ginsberg refers. Can Satanists sue to overturn state laws restricting abortion? And neither the validity nor the sincerity of their belief be questioned? Or will the court narrow the non-testing of sincerity to some menu of reputable beliefs?

Dave Sagarin (June 20, 2014)