Nick Little has a post analyzing the Hobby Lobby ruling at the CFI blog. This is good, because I was wishing I could hear from him or Eddie Tabash or both. I talked to the two of them for a few minutes at Women in Secularism and the conversation was all about SCOTUS and Hobby Lobby and Kennedy (“it’s Justice Kennedy’s world and we all live in it”). I like lawyers’ shop talk when it’s about subjects of general interest. (Patent law and the like, not so much.)
Standing
According to the majority, for-profit corporations now have religious freedom rights. Commentators have been quick to point out that Alito sought to restrict this to closely held companies (which includes some of America’s largest corporations, such as Koch Industries and Bechtel); in the opinion the only thing he says regarding publicly traded corporations is he doesn’t think they will apply for such exemptions.
Oddly enough this doesn’t fill me with a great degree of confidence. The problem is, every piece of legislative history, and there is plenty of it, makes clear that RFRA was not intended to cover for-profit corporations. But the majority decided to play its textualist reindeer games, and subvert the clear intention of Congress (the elected branch) and instead impose its own view on the country, and elevate corporations to the same level, if not higher than, real people.
Judicial activism anyone?
Sincerity of Belief
The Administration didn’t challenge Hobby Lobby here, and the government attorneys as well as the Court could not stop falling over themselves to congratulate the Greens, owners of Hobby Lobby, on their piety and devout beliefs. Well, it is time to call shenanigans on that. Hobby Lobby, as has been shown, has invested in excess of $73 million in companies that manufacture the very types of contraception the Greens claim are so offensive to them. So, in the Brave New World of corporate religious exercise rights, making money off something is just fine and dandy, but providing insurance for others to use it will damn you to hell. This belief doesn’t bear up to scrutiny, and the case should have gone no further once it was clear that Hobby Lobby’s desire here was scoring a point not defending a genuine belief.
Well look at it this way – scoring a point when the point is to say “we demand religious privilege for ourselves” represents a sincere belief, to wit the belief that people who follow the majority religion should be able to impose the strictures of that religion on everyone else.