Christine Flowers: Court got the Hobby Lobby decision right

Supporters of employer-paid birth control rallied on Monday before the decision. The Supreme Court ruled that employers with religious objections can refuse to pay for contraception. (Chip Somodevilla/Getty Images)
Supporters of employer-paid birth control rallied on Monday before the decision. The Supreme Court ruled that employers with religious objections can refuse to pay for contraception. (Chip Somodevilla/Getty Images)
Posted: July 02, 2014

THAT "THUD" you just heard was the sound of progressives, secularists and freebie-seekers thumping their foreheads in anguish.

Or perhaps it was the rumble as millions of religious folk fell to their knees in gratitude that the Supreme Court had, for once in a blue moon, gotten the free-exercise clause of the First Amendment right.

Or it possibly could have been the clamor of bricks from that imaginary Wall Between Church and State, crumbling to the ground in a felicitous heap.

Yesterday, in its usual "save the best for last" showstopper, the Supreme Court handed down a decision that will have serious implications for religious freedom, the Affordable Care Act and Sandra Fluke's chances for not ending up as an irrelevant punch line.

In one of those contested 5-4 decisions with the only question mark being which side gets to claim Anthony Kennedy, the court issued a sweeping decision that held the ACA's so-called contraceptive mandate to be unconstitutional both as a violation of the First Amendment and the Religious Freedom Restoration Act. RFRA is a federal law passed in 1993 that is significantly more generous in the scope of its religious protections than the free-exercise clause. According to RFRA, the government "shall not substantially burden a person's exercise of religion" unless that burden is the least-restrictive means of furthering "a compelling governmental interest."

Apparently, making sure that women have free birth control didn't make the constitutional cut.

Yes, I'm being flippant here, but this is no law-review article and I'm not Oliver Wendell Holmes. What I am is a woman who has watched as mincemeat has been made of personal responsibility by an administration that thinks the government needs to keep its figurative hands off women when it comes to reproductive matters, except, of course, when we're asking for someone to pick up the tab. Then, it appears, Uncle Sam has to pony up, even if he decides to pass the bill off to private employers.

Fortunately, a lot of those employers refused to fall in line. One of them finally got the justice that all of them had been seeking, and it is truly a glorious day for those of us who will benefit from the effort.

Hobby Lobby, a for-profit, family-owned business in Oklahoma, challenged the ACA's mandate requiring employers to provide birth-control coverage through the insurance plans it provided to employees. The owners of the Hobby Lobby chain are Christians who oppose certain specific forms of birth control that act as abortifacients, and filed suit against the government for forcing them to violate their deeply held religious beliefs. The lower courts had ruled against them, but as with most of the courageous citizens who have fought their way to the marble temple in our nation's capital, the strength of their convictions carried them upward.

The same could be said for Jane Roe, the woman who fought the battle for abortion rights (before realizing her mistake and embracing the pro-life cause). The same could be said for Clarence Earl Gideon, whose handwritten habeas petition was the first salvo in a victorious fight to make the right to counsel mean something. I even suppose the same could be said of Edith Windsor, whose refusal to pay income taxes triggered a lawsuit that ended with Anthony Kennedy recognizing a federal right to same-sex marriage.

You can disagree with the merits of these cases (and with the exception of Gideon, I do), but you can't question the sincerity or the integrity of the people bringing them. Unless, of course, you're the kind of person who thinks that religion is a farce and birth control is much too expensive. In that case, you write things like this:

"The Supreme Court ruling proves once again that Scalia Law is a lot like Sharia Law." That gem was from someone named John Fugelsang (is he famous?), who obviously thinks all Italians look and think alike. It was Samuel Alito, not Antonin Scalia, who actually wrote the majority decision.

"It's time that five men on the Supreme Court stop deciding what happens to women." That was from someone named Harry Reid (is he famous?), who obviously doesn't think that women can decide what happens to them by buying their own darn birth control.

"The Supreme Court took an outrageous step against the rights of America's women." That was from someone named Nancy Pelosi, who probably shouldn't be worrying about birth control anyway.

"Can't believe we live in a world where we'd even consider letting big corps deny women access to basic care based on vague moral objections." That was from someone named Elizabeth Warren, whose entire senatorial campaign was based on vague moral objections to corporations.

The reason I am citing these individuals is to show what hysteria looks like when the Supreme Court tells people that religion has relevance. The Hobby Lobby decision did not create a Christian caliphate. It did not guarantee that women would be retrofitted with chastity belts. It simply recognized that there are certain things more important than the convenience of having someone else pay for your pleasure at the expense of their faith.

This is one woman who thinks those five men got it right.

Christine M. Flowers is a lawyer.



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