One of the hallmarks of the ongoing conservative legal revolution is that judicial decisions with enormous consequences are often downplayed by their engineers as just another day at the office (Citizens United, Carhart v. Gonzales), or as having no significance as precedent (Bush v. Gore). As Jeff Toobin explains at the New Yorker, the same phenomenon is occurring with respect to Burwell v. Hobby Lobby Stores, Inc.
Justice Samuel Alito insisted, in his opinion for the Court, that his decision would be very limited in its effect. Responding to the dissenting opinion by Justice Ruth Bader Ginsburg, who called it “a decision of startling breadth,” Alito wrote, “Our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs….’ ”
A sampling of court actions since Hobby Lobby suggests that Ginsburg has the better of the argument. She was right: the decision is opening the door for the religiously observant to claim privileges that are not available to anyone else.
One such matter is Perez v. Paragon Contractors, a case that arose out of a Department of Labor investigation into the use of child labor by members of the Fundamentalist Church of Jesus Christ of Latter-day Saints. (The F.L.D.S. church is an exiled offshoot of the Mormon Church.) In the case, Vernon Steed, a leader of the F.L.D.S. church, refused to answer questions by federal investigators, asserting that he made a religious vow not to discuss church matters. Applying Hobby Lobby, David Sam, a district-court judge in Utah, agreed with Steed, holding that his testimony would amount to a “substantial burden” on his religious beliefs—a standard used in Hobby Lobby—and excused him from testifying. The judge, also echoing Hobby Lobby, said that he needed only to determine that Steed’s views were “sincere” in order to uphold his claim. Judge Sam further noted that the government had failed to prove that demanding Steed’s testimony was not, in the words of the R.F.R.A., “the least restrictive means of furthering that compelling governmental interest.” That burden seems increasingly difficult for the government to meet.
The Supreme Court itself has suggested that the implications of Hobby Lobby were broader than Alito originally let on. Just days after the decision, the Court’s majority allowed Wheaton College, which is religiously oriented, to refuse to fill out a form asking for an exemption from the birth-control mandate—while retaining the exemption. There is another case, Little Sisters of the Poor v. Burwell, which is also pending, where a religious order asserts that the filling out of a form (which, if granted, would exempt them from the law’s requirements) violates their rights.
If just filling out a form can count as a “substantial burden,” it’s hard to imagine any obligation that would not.
It looks like the Court will soon have abundant opportunities to prove Ginsberg was absolutely right.