Why Hobby Lobby will probably win, and why it should.
Let's call this the Peyoteros revenge, or "unintended consequences bite", shall we.
Now, I am, of course, appalled (as would any right thinking person be) that the societal benefits of co-payment free birth control and insurance coverage for medical advice about the same) should be undercut by a law specifically intended to vindicate the influence of religion in the sphere of secular behaviour.
But let us be clear--the harm flows not from the unforeseen elaboration of the stated primacy of religious beliefs, but from the decision by the state to give religion special status in the first place.
Let us begin by taking off the table the manifestly outrageous extension to a corporation of a religiously based scruple. This particular oddity is an artifact not of the Religious Freedom Restoration Act (RFRA) which governs the jurisprudence underlying the Hobby Lobby case but of the decision in Citizens United, extending to corporations the rights which are protected by the First Amendment to the Constitution.
For sake of clarity, let's assume, arguendo, that instead of a corporate business structure, Hobby Lobby was one of the myriad business owned by an individual, one of the Koch brothers, for example.
Now let us assume that David or Charles Koch were before the court, arguing that his personal religious promptings were outraged at the idea that any business of his might facilitate, even if only in its choice of medical insurance carrier, the use of this or that contraceptive intervention in the intended plans of the Lord for procreation.
Suspend, for a moment your outrage at this preposterous extension of personal privilege to the behaviour of out of sight and out of mind female employees thousands of miles away from the City of New York (and the David Koch Theatre where the eponymous brother may be found pursuing his hobby of fucking ballerinas--not that there's anything wrong with that).
Consider, instead, one of the cases that will inform the judges thinking tomorrow, when Hobby Lobby will be decided.
Evelyn Smith owned two duplexes in Chico, California and sought to avoid renting to unmarried couples. (Significantly, she did not live in either one, and therefor would not have been subject to hearing the sounds attendant upon the ongoing unsanctioned fornication to which she objected.)
The California Supreme Court rejected her RFRA based claim of exemption from the relevant housing anti-discrimination statutes, mostly on the grounds that if she wished to preserve her religious scruples she could sell the property and invest the money in some way which would not give rise to the possibility of such offense to her faith. The burden of re-deploying her capital was held to be lower than the threshold harm that RFRA was intended to avoid.
The US Supreme court refused review of the case, to the consternation of a young lawyer in the Clinton White House whose 1996 memo described the California Supreme Court’s reasoning that the anti-discrimination law wasn’t a substantial burden on Smith’s religious beliefs as “quite outrageous,” warning that, “taken seriously, this kind of reasoning could strip RFRA of any real meaning.”
Her name was Elena Kagan.
The RFRA was initially proposed in response to the general distress amongst the religious (including Ted Kennedy) occasioned by the reversal at the Supreme Court level of a lower court decision that two drug counselors who had used Peyote as part of their unequivocally religiously motivated practices and were then dismissed were eligible for unemployment compensation meaning that their firing was not based upon "good cause".
Thus was born the RFRA, and today we see the revenge of the Peyoteros-a straight line of consequences that flow from the initial evil.
That evil: The conscious decision taken by society to elevate behaviour motivated by religion to a special status not granted other sorts of motivation.
You have your freedom of religion, America. Now choke on it.