Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Hobby Lobby and the Messy Face of Public Justice

Timothy Sherratt


By Timothy Sherratt

July 7, 2014

In his opinion last week in Burwell vs. Hobby Lobby Stores Inc., Justice Samuel Alito wrote:

If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.

The Supreme Court ruled that Hobby Lobby, a “closely held” for-profit company, cannot be required to provide certain contraceptive services to employees that would be in contradiction to the owning families’ religious scruples. This is a welcome ruling.

It is welcome because Hobby Lobby is not a church or a religious non-profit but a for-profit company whose owners seek to practice their religion consistently in every area of life. The ruling affirms that the liberty to live according to religious teachings has just as much substance whether the domain is worship or commerce.

The affirmation of religious liberty in this case may not be the more important outcome. The ruling also shows how appropriate exemptions to generally applicable laws lend extra validity to the laws they check. At the Affordable Care Act’s (ACA) major test in 2012, the Court upheld the mandate to purchase health insurance under Congress’s power to tax. However, when finding that the contraception mandate within that law unduly burdens constitutionally protected religious liberty, the Court’s five-judge majority recognized the law’s limited reach.

Justice Alito and his colleagues did not issue a broad ruling on religious liberty, but rather tailored it to the contours of this particular case. They accepted the government’s argument that the HHS mandate serves a compelling government interest, but judged that the heavy fines from non-compliance did not accord with the “least restrictive” means of exercising a compelling government interest, as the Religious Freedom Restoration Act (RFRA) requires.

The contraception and abortion rights at issue in this case anchored the expansion of the personal right to privacy as long ago as the 1960s and 1970s. Justice Ginsburg, writing for the dissent, sounded the alarm on behalf of women’s autonomy. Hobby Lobby’s exemption, she wrote, “would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.” 

The majority’s answer to this concern, amplified in Justice Kennedy’s concurring opinion, is that government has already supplied the remedy in the exemption granted to nonprofits, namely that government can provide the necessary coverage. That seems to have been enough to persuade the traditional swing justice to side with the Court’s more conservative members.

Conflict between generally applicable laws and religious norms will happen in a society with an active democratic government operating along majority rule lines. In this case, a generally applicable mandate to provide contraceptive services must now grant an exemption for the religious convictions of for-profit business owners, while employees denied coverage may secure it from government. Such is the messy and open-ended outcome of the latest challenge to the Affordable Care Act.

But doing justice to the diverse members of a complex society is both messy and open-ended. The majoritarian legislative process will only be aware of, let alone deferential to, religious scruples to the extent that society’s diversity is well represented there. Representation is an important component of public justice, and it is one reason why courts may revisit the work of legislatures under our system.

In political life, few issues are resolved once and for all. The messiness here holds particular significance: it suggests that all the interests at stake, those of the religiously motivated business owners, of government, and of women, have all been weighed. The narrow majority testifies to the different ways the judges would assign rank order to these interests. The only victory that counts should be the victory for public justice.

-  Timothy Sherratt is Professor of Political Science at Gordon College in Wenham, Massachusetts and a Sabbatical Fellow with the Center for Public Justice.

“To respond to the author of this Commentary please email:
Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”