SCOTUS Hobby Lobby decision . . . maybe not so bad ?

As I said I would in yesterday's posting about the Hobby Lobby decision, today I am trying to condense and explain a quite different point of view that comes from an interview on WABE (Atlanta's NPR radio station) with Mark Goldfeder, who is a Senior Lecturer at Emory University School of Law and a Senior Fellow at the Center for the Study of Law and Religion at Emory University.

As Professor Goldfeder explains, all the talk about Hobby Lobby (abbreviated hereafter as HL) being a "closely held" corporation really is not the significant thing, because 90% of U. S. companies are considered closely held.   They are, almost by definition, smaller companies -- many of them primarily a family business -- as opposed to a large, publicly traded corporation.  

However, according to a New York University report, 52% of all private employees work for such "closely held" companies.  It's not an insignificant number of people.   So in what sense was it a narrow decision that will not have much effect beyond this case?

The reason we don't need to worry about a slippery slope, according to Goldfeder, is that, in addition to being closely held, the corporation has to meet the further criteria of  "strict scrutiny jurisprudence."   These safeguards have been there for at least 21 years, since the passage of the Religious Freedom Restoration Act (RFRA).

Goldfeder explains that, unlike what most people assume, this was not primarily a constitutional case testing the freedom of religion right.  It was a case brought under the RFRA, which requires that to be granted an exception three criteria must be met.   And this HL case is the first one in those 21 years that has met those criteria.

The corporation must first convince the court that its religious objection is a sincerely and deeply held one and that the requirement would be a substantial burden on their belief system.  HL did this.

If that criterion is met, then the government can deny the exemption only if it shows:   (1) that it has a compelling interest in the requirement (to provide birth control) and (2) that there is no other way to satisfy that requirement.  If the government can convince the court on these two counts, the company loses the case, and no exemption is granted.  In other words, the law does not allow for religion to trump unless all three of these criteria are met.

The court was not convinced that the only way to provide contraceptive care for HL's employees was to require the company to violate its religious beliefs.   After all, the government has already established a way of doing that for catholic churches and hospitals.  Therefore, quite properly according to this reasoning, the court upheld the exemption for HL.

Goldfeder says that almost no corporations can meet that standard of strict scrutiny.  He says, further, that this way of deciding about an exemption has been available, at least since the RFRA became law in 1993.   What this case did was simply affirm that this provision in RFTA is in fact a good test, that the Court knows how to balance interests properly, and that occasionally, once every 50 years or so, a deserving group will get an exemption."

That is Professor Goldfeder's argument.   It makes the court decision seem both less outrageous and less ominous.  Whether he is correct remains to be seen.

Now I feel compelled, however, to question the court's finding that Hobby Lobby has a sincerely held religious objection in view of the fact that HL freely engages in trade in China, a country where government (until recently) compelled women to have abortions if they already had a child and got pregnant.   That makes an IUD and the birth control pill seem like pretty small potatoes.  Yet HL, it seems, is willing to put aside their religious objection to abortion in order to profit from its business in China.

However, what I don't know is whether Hobby Lobby only sells to China or whether they actually operate in that country, have employees there, etc.  That would make a lot of difference.    This argument will undoubtedly go on for some time.

Ralph