Civil and Human Rights

Scalia’s birth control debacle: Wingnut justice completely baffled by contraception

Expert considers why he rejected the religious liberty claim of employees, but seems ready to side with Hobby Lobby

By Josh Eidelson

The Supreme Court heard oral arguments Tuesday on this session’s marquee question: Whether a for-profit corporation’s religious convictions can override an Obamacare mandate that insurance plans cover contraception. Activist attorney Sandra Fluke argued to Salon that the decision – on twin cases Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius – “has the potential to be very disastrous,” weakening protections for workers and LGBT people as well as women’s rights.


The for-profit businesses in these cases rest their claims on the 1993 Religious Freedom Restoration Act, a federal law passed in response to a lightning rod Supreme Court case, Employment Division v. Smith, which had found that the First Amendment’s “free exercise” clause did not protect members of the Native American Church from being denied unemployment benefits because they’d used peyote. The author of that 1990 decision was none other than Antonin Scalia.


But the firebrand justice, who rejected the religious liberty claims of the workers in Smith, appeared sympathetic on Tuesday to the religious liberty claims of the business owners in Hobby Lobby and Conestoga Wood. To consider that contrast, Salon called up attorney David Gans of the progressive Constitutional Accountability Center, the author of a brief supporting the Obamacare mandate. A condensed version of our conversation follows.


What stood out at today’s argument?


In many ways the kind of fundamental question … [was]: Do employees count at all when it comes to these free exercise RFRA claims that are brought by secular for-profit corporations?


… The view that Paul Clement sort of argued for, from Hobby Lobby’s perspective, was … really about the religious liberty of the owners and the corporations they direct — and really sweeping under the rug the religious liberty of, and personal liberty interest of, the employees …


Among the conservatives, only Justice Kennedy sort of pushed [back on] that and said: What about employees who may have their own religious beliefs, and aren’t required to have the same as the corporate CEO’s? And does religion just trump their interests? … [Solicitor] General Verrilli — you know, the main thrust of his presentation was to emphasize that there’s no precedent for giving a commercial enterprise a religious exemption of the sort that would take away and deprive employees of important federal rights, and deny them the right to sort of consult their own deeply held beliefs in deciding whether or not to use contraceptives.


That in many ways was the dividing line.


Certainly Kennedy … emerged as kind of the key vote, as he so often does … Among the conservatives, he was the only one who had critical questions for both sides …


It’s important to highlight questions from [Justice] Sotoyamor, Justice Kagan and Justice Ginsberg, who all emphasized, while access to contraceptives is an important right, implications here go beyond … Sotomayor opened the argument asking Paul Clement … what about a secular employer who doesn’t want to pay for vaccinations for religious reasons, or doesn’t want to pay for blood transfusions, or doesn’t want to pay for medication made from pork products?


… [Clement] didn’t really have an answer to, really, the far-reaching implications of his argument. He said, well, every case will be judged according to … [the] “substantial burden,” “compelling state interest” framework that RFRA provides … [That’s] really kind of no answer to [the danger that] this is going to open the door to a wave of religious exemptions from critical federal protections.


Scalia said during the oral argument, “You’re talking about, what, three or four birth controls, not all of them, just those that are abortifacient. That’s not terribly expensive stuff, is it?” Is that a compelling counter?


It’s not compelling, for a couple reasons.


I think General Verrilli exposed, you know, Scalia’s sort of lack of knowledge … One among those four are IUDS … the most effective form of contraception, also the most expensive … The evidence presented in the brief suggested that women often choose contraceptives constrained by cost. And you know, the very point of the federal law is to ensure women’s health and ensure their reproductive freedom by making sure they have access to all forms of contraceptives …


The flaws go deeper … If you’re giving secular for-profit corporations the right to evade this requirement, you have to ask: Well, what will happen systemwide …? There will be some employers that will say … we have opposition to all forms of contraception …


To evaluate — is there a compelling state interest that would be undermined by granting an exemption — you sort of have to ask at a much more fundamental level … What would our sort of system of employee-based healthcare look like if employers who had religious objections to certain forms of medical treatment could opt out … The thing that was sort of most striking about Justice Scalia was … how changed Justice Scalia from Smith was … [In Smith he] took a view that was obviously extremely hostile to religious exemptions, and expressed the idea that generally religion shouldn’t be above the law … There was one point [Tuesday] he talked about [that] they passed RFRA and that made good sense — which just seems striking … Is it really saying that it was a good idea that they passed a statute that purported to overrule, you know, a First Amendment precedent that he wrote, that everyone, you know, views as quite significant?


… His view today was very much different than the views he offered in Smith. And in many ways, the issue before the court was whether, you know, the conservatives were going to sort of take RFRA and kind of break from its moorings in … prior free exercise precedent, to create [a] new legal regime that would give businesses a host of religious exemptions from federal rights – and would do so in a way that would sort of cancel out the rights of their employees.


Justice Scalia wrote in Smith: “Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.” Congress, as you said, responded by passing the Religious Freedom Restoration Act. Who do you believe was right?


What we know is there were pretty grave disputes about what the law is or should be at the time of Smith. I think the pattern of cases that you saw was that although …“strict scrutiny” was the standard that court invoked, [in practice] it was actually far from the strict scrutiny that we’re used to, and loads of claims for religious exemptions were rejected in case after case. In fact the only kind of clear winners were individuals who were seeking unemployment compensation who were forced to work on a Saturday … or individuals who had a religious opposition to war who didn’t want to work in armaments. The court decided in those cases they had to be given an exemption and provided unemployment compensation …


For today, the most important case was a case called [United States v.] Lee, where they rejected the claim of an Amish bus owner who wanted to deny Social Security benefits to his employees. And the court said we’re not going to create a religious exemption where doing so would be imposing the employer’s religion on his employees …


Scalia, I think, today … tried to get around the fact that at the heart of Lee was this idea that once you, as a business owner, choose to go into a commercial enterprise, in which you are, you know, employing people of all religious faiths, the convictions you have can’t be imposed on your employees in a way that would deny them … their own right to act on their personal liberty and their freedom of conscience …


I think the vision we get from Scalia — at least, just reflected by his questions today — is really quite different than what he said in Smith … Today he seems to be pushing a view of RFRA that … suggested a broad range of religious exemptions would be required.


Do you believe that Smith was decided correctly?


There’s certainly been a long debate on the court and off the court about that …


If you look at claims … made by religious business owners or religious employers who were seeking exemptions from federal legal protections, in case after case the court said … we can’t grant that without compromising critical civil rights, and undermining general protections that are important to employees. And it seems … [Scalia is] trying to, under the guise of interpreting RFRA, create a host of claims to religious exemptions that really don’t have any foundation in anything the court has ever said about the meaning of the Free Exercise guarantee …


When Congress is acting to ensure that women have access to the full range of contraceptives, to protect their health, and to protect their reproductive freedom, and to protect their ability to make life choices … we have a very divided court that may well go so far as to say secular for-profit corporations — which are bodies that don’t have freedom of conscience in the way that individuals have — can override those individual rights. And impose their religious beliefs on their employees, which I think is very troubling.


Today we just heard the argument. And I think, you know, what we’re going to see is a closely divided opinion. And at the same time I think it’s troubling to see a number of justices on the conservative wing pressing this broad view of religious exemptions that are really unprecedented in law. You know, there’s always a gap between what happens at argument, and what happens in the final opinion … And it is important to recognize that Justice Kennedy showed concern about just allowing an employer’s religious claims to trump the rights of the employees who don’t share those religious beliefs …


That’s something that the court will have to wrestle with.


Is there a set of reasonably consistent grounds on which Scalia could side with Hobby Lobby here without contradicting his decision in Smith?


Well, obviously Congress, in passing RFRA, rejected Smith and established greater statutory protections … The fundamental question in this case concerns … the meaning of those statutory protections. The whole idea behind Smith was [to] restore the status quo … in which there were some [who] sought religious exemption, which were granted, but many of them were denied. And there was a balance to those cases which was recognized, and one aspect of the balance … [the Obama administration] emphasized was: A commercial enterprise, you know, couldn’t simply override and impose its own religious views on that of its employees. And it seems like, from a number of conservative justices, the thrust was sort of to rewrite that balance, [which] produces [an] RFRA that has no roots in everything the Supreme Court has said about Free Exercise …


RFRA was designed to … not say who should win claims for religious exemption, but [rather to] say the Supreme Court had been wrong in Smith to sort of say they’re categorically prohibited. Sometimes they should win. Sometimes they should lose. And so there’s a balance there …which would include the claims of the employees. But it seems like Clement, and a number of the conservative justices, want just to bury under the rug any interest employees have in their own personal liberty, and their own human dignity, and their own ability to act on their own conscience and moral beliefs.

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