Hobby Lobby, the Culture Wars, and Big Government

Perhaps never in the history of the Supreme Court has a case of such limited practical significance generated as much press attention and hyperbole as has Hobby Lobby.  Hillary Clinton is the latest politician to try to make inflammatory use of it: just yesterday she stated that it was step toward the kind of anti-women policies seen in extremist and undemocratic societies.

The case has captured attention for three reasons. First, it lies on the fault line of our culture wars, pitting the religiously oriented Hobby Lobby against the secularly oriented Obama administration. Second, its actual legal issues are very complex and inaccessible to the non-lawyer public, thus permitting politicians like Clinton to use it for their own ends. Finally, it provides catnip to reporters and pundits because it concerns contraception: sex helps sell the news as surely as it does other products.

Yet the case is of limited practical importance for no less than four reasons. First, it interprets the Religious Freedom Restoration Act, not the Constitution. Congress could change the result tomorrow, if it chose. To be sure,  a law on the books benefits from inertia and a divided Congress is unlikely to amend RFRA soon on this matter. But its failure to do so shows that the Supreme Court’s decision is not wildly out of step with popular sentiment as sometimes are its constitutional decisions, which are far more difficult to amend. So much for Hobby Lobby being a step to undemocratic extremism. And going forward, Congress can exempt future legislation from RFRA’s strictures to the extent it wishes.

Second, few companies are likely to take advantage of the decision. By its holding the case applies only to closely held corporations, even if by logic it could apply to publicly traded ones.  But the publicly traded corporations are very unlikely to withhold any forms of contraception on a religious basis: it would not advance any of their objectives. The market would mean that they would pay a price for failing to provide a service that most other companies are making available. For similar reasons, the vast majority of closely held companies also do not have proprietors who have strong enough beliefs to deny certain  forms of contraception.  Hobby Lobby is a minority outlier.

Third, even women at the small number of companies refusing to provide certain kinds of contraception will likely receive free contraception in the end. In deciding that the administration was not pursuing the means for achieving its objective that was least burdensome to deeply held religious beliefs, the Court in fact suggested some accommodations that would get free birth control to women and yet better respect the religious scruples.  The Obama administration is free to pursue these options.

Finally, even in the unlikely event that the Obama administration provides no acceptable accommodations, the relatively few women who do not have  health plans that provide the kind of contraception they want can buy that contraception for themselves.   Hobby Lobby does not ban contraception.  To be sure, their preferred form of contraception may be expensive for some, but no more so than before the Affordable Care Act. They will face the same situation as they did in 2008, not in the dark ages.

Despite is limited practical importance the hype and political misuse of the case has real costs. Our culture wars undermine the nation’s unity and distract us from far more serious problems—from terrorist threats abroad to the economic dislocation caused by rapid technological change. Of course, one cannot wish moral and religiously based disagreements away. But it should not be forgotten that their virulence stems in large measure from the decline of limited government. If there were no Obamacare, no single decision maker would determine the content of health insurance packages for all. Even if states rather than the market made that determination, the multiple and no doubt conflicting state decisions would reduce the stakes.   Big government catalyzes endless and toxic cultural conflict.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. R Richard Schweitzer says

    This approach overlooks the hubris of the managers of the Federal Administrative State.

    This issue (the one decided) and the upcoming issue of the Little Sisters of the Poor arise entirely from the manner in which those managers have chosen to exercise the bureaucratic discretion granted them by our legislative “representatives.” (The quotation marks are due to the legislative history and determinative influence of the current Majority Leader of the United States Senate).

    The next issue of hubris to be dealt with is the direction of those managers to the Little Sisters of the Poor that they must either provide specified “benefits” to their fellow workers, OR, they must instruct others with whom they have contractual relationship to do so. The managers refuse to offer any other alternatives other than those of their own devising. Hubris! Pure hubris!

    The “I have spoken” and the “WE have spoken” have become so prevalent that they go unregarded for what those phrases indicate.

  2. gabe says

    Prof. McGinnis:
    You are right that the “virulence” stems from the absence of limited government and it is that monstrous mutation that provides cover, support and authorization for the managers that Richard so rightly derides.

  3. nobody.really says

    If there were no Obamacare, no single decision maker would determine the content of health insurance packages for all. Even if states rather than the market made that determination, the multiple and no doubt conflicting state decisions would reduce the stakes. Big government catalyzes endless and toxic cultural conflict.

    Fair enough. And in 1797-98, the Thames River Police became associated with altercations, conflict, and crime while saving an estimated “£122,000 worth of cargo and … several lives.” They had managed to avoid any taint of conflict before then – because they hadn’t been organized before then. Should we therefore conclude that the creation of a police force in 1797 catalyzes endless and toxic altercations, conflict, and crime?

    The problems illustrated by the Hobby Lobby case existed prior to Obamacare – but were sufficiently clouded in technicalities that few people realized them. Obamacare enabled Hobby Lobby’s to act in accordance with its religious views – seriously. Before Obamacare, Hobby Lobby offered insurance for all the kinds of birth control it claims to oppose. It was only thanks to Obamacare that Hobby Lobby bothered to find out what its policies covered, and then to manufacture a sense of outrage over being forced to do something it was already doing anyway.

    Whether you look back with nostalgia on the good ol’ days may be influenced by what you understand about the good ol’ days. Lightning rods attract lightning. They don’t manufacture lightning. There’s a difference.

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