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What Hobby Lobby Means for Religious Liberty By Zachary Enos, Assistant Director of Communications

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Ryan Colby 202-349-7219

By Zachary Enos, Assistant Director of Communications

Looking for the inside scoop on Hobby Lobby’s historic advance of religious liberty? You just found it! Only hours after the Supreme Court’s ruling, Eugene Volokh of the Volokh Conspiracy blog (hosted by the Washington Post) published exclusive legal analysis from Professor Mark Rienzi—one of Hobby Lobby’s lead attorneys and Senior Counsel for the Becket Fund.

After highlighting landmark aspects of the opinion, Rienzi demonstrates that High Court’s reasoning sounds the death knell for the Administration’s assault on religious ministries. Here’s a brief sketch of Mark’s points:

  1. Corps Exercise Religion: The Court definitively recognized that “for-profit” corporations can and do exercise religion. Only 2 Justices—Ginsburg and Sotomayor—disagreed. The Court’s conclusion shouldn’t surprise. After all, corporations (e.g. churches & charities) and for-profit ventures (e.g. religious bookstores & kosher delis) have been exercising religion for an awfully long time.
  2. Crushing Fines = Substantial Burden: The Court’s analysis of the substantial burden test made clear that if the fines or “consequences” (e.g. dropping coverage altogether) at issue “do not amount to a substantial burden, it is hard to see what would.” Expect this test to set the tone for future RFRA claims.
  3. Complicity is for Religion, not Government, to decide: The Government’s main substantial burden argument—in both the for-profit and non-profit cases—flopped. For the Court, the Government’s attempt to label the Greens’ objections to complicity in abortion too “attenuated,” merely questions the legitimacy of “the Greens’ religious beliefs.”
  4. Strict Scrutiny Fail: The Court cast doubt on the Government’s compelling interest defense and then conclusively flunked the Government on the “least restrictive means portion of strict scrutiny.” The Government could have paid for the drugs and devices directly; it could have extended another accommodation. By ignoring less restrictive alternatives, the Court found it impossible for the Government “to demonstrate that it had used the least restrictive means.”
  5. Mythical Slippery Slope: The Court also rejected the notion that protecting the Greens will create a slippery-slope because nothing in the ruling “allows for racism, rejection of vaccinations, and other factual scenarios that have not yet been raised.”

In sum, Hobby Lobby’s victory bolsters religious freedom for all Americans.

Religious ministries challenging the HHS Mandate will take solace in the fact that, within hours of receiving the Supreme Court’s decision, “the Eleventh Circuit issued an injunction” protecting “a non-profit television network founded by nuns.” By rejecting the Government’s “attenuation” claim, the Court fatally undermined the primary argument leveled against ministries like the Little Sisters of the Poor. Furthermore, the Court’s opinion “makes clear that the Government must explain why it cannot simply pay for the drugs itself.”

Hobby Lobby also helps RFRA suits generally by setting the expectation that the government must justify its decision to dole out secular accommodations, while denying those same exemptions to people of faith.

Read Mark’s entire article here.