Some Hobby Lobby and Town of Greece thoughts

I wonder if the legal impact of these two religion-related cases will prove to be less significant than the political impact.  For example, the striking exaggerations and even misrepresentations from many commentators and activists about the reasoning, holding, and implications of the Hobby Lobby case have already prompted calls to repeal or gut RFRA.  These calls, as I see it, are striking in part because they depart so dramatically from the bipartisan consensus of just a few decades ago about the value of accommodating religious liberty and also because they fail to appreciate that the vast majority of those who benefit from RFRA and RFRA-type laws are not "corporations" but are members of vulnerable and unpopular religious minorities.

 

I continue to think that the Town of Greece case is best seen as a "preserve the status quo" case.  The Second Circuit had proposed a departure from the Court's longstanding approach to legislative prayer, set out in the Marsh decision.   The justices overwhelmingly -- even the dissenters -- insisted that Marsh remains the standard, even as they disagreed about its application.  The denial of cert in the Seventh Circuit graduation-in-a-church case suggests that the Court was not looking to remake its religious-symbols doctrines or explicitly jettison the battered "endorsement test."  

 

The Hobby Lobby ruling, assuming its reasoning is taken seriously in the lower courts, confirms what was said several years ago (unanimously) in O Centro:  RFRA is to be taken seriously.  That is, Congress meant what it said when it declared it to be the national policy that substantial burdens on religious belief and practice need to be well justified, under a demanding standard.  If the federal government can accommodate religion, the Act says, then it should.  The fact that accommodation involves some costs and inconvenience, and some departures from uniformity, is not an excuse for not accommodating.  This is an important principle, and Hobby Lobby's primary significance is that it affirms it.  But, again . . . the Court had already said this.  What Hobby Lobby does that could be "new" is that it does so in a more charged, "culture wars" context ("War on Women" rhetoric means anti-Citizens United passions) and so prompts (as O Centro did not) calls to embrace the "same rules for everyone no matter what" standard that was, to so many on the left, offensive when proposed by Justice Scalia in Smith.  

 

The "parade of horribles" being suggested by some commentators, and by the dissent, is very unlikely to come to pass.  We will not see courts allowing for-profit businesses to ignore nondiscrimination laws, or health-and-safety rules, or general tax obligations.  Hobby Lobby is an unusual case, in part because Hobby Lobby is an unusual company and in part because the contraception mandate is an unusual rule (one that, it's worth remembering, was not imposed by Congress itself).  Those who claim that this ruling means that big companies will start discriminating on the basis of race or trying to avoid paying minimum wage know better.  RFRA has been on the books for more than 20 years.  If there was a lot of interest in bringing these kinds of cases, we would have seen some.