Religious Freedom for All: The Supreme Court’s Consistency in Burwell v. Hobby Lobby and Holt v. Hobbs

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Religious freedom is a classical liberal right. It is, in fact, the first right, enshrined in our Constitution from the opening sentence of the First Amendment. Yet even with this strong pedigree, religious freedom has often been, and remains to this day, contentious. As any good historian will tell you, the naïve image of the early Republic as a haven for religious toleration is simply pretty fiction. Despite having left Britain in search of a religious refuge, early Pilgrims were as zealous as anyone in imposing religious domination once they got to America. Religious dissent was permitted only where convenient (in private worship), while public faith acts by minority religions were often forbidden. The First Amendment was intended to expand this limited conception of religious liberty to include not just the right to worship, but the right to the complete “free exercise” of one’s faith. Yet unfortunately, many of today’s mainstream liberals find themselves returning to the narrow view of religious liberty as the freedom to worship as conscience dictates. Private acts of faith may be protected, while public ones – especially those that diverge from a progressive agenda – are labeled as outside the scope of liberty. Free exercise is diluted to a question of convenience, not freedom.

This doctrine of a ‘religious liberty of convenience’ is sometimes justified by an appeal to the possibility that certain acts of public faith may serve to ‘force’ the actor’s beliefs on others. While this possibility always exists and should be vigilantly guarded against, many liberals of today invoke it far too often and in inappropriate cases, effectively suppressing religious exercise that conflicts with their progressive principles. A closer look at two recent Supreme Court cases – Burwell v. Hobby Lobby and Holt v. Hobbs – will illustrate this issue.

No doubt familiar to many, Hobby Lobby was a strikingly polarizing decision that narrowly recognized the right of closely held corporations to refuse to cover certain birth control methods under their insurance policies. Conservative media hosts and Republican representatives heralded the 5-4 win as a triumph for religious liberty, while left-leaning publications and Democratic senators slammed the Court’s majority as callous and overreaching, accusing the Justices of fostering a “war on women.” This highly publicized decision not only encouraged widespread debate, but also prompted several Democratic senators to propose new legislation, including the so-called “Not My Boss’ Business Act.”

With all the controversy surrounding Hobby Lobby, one would be forgiven for having missed our second religious liberty case entirely, as the reaction to Holt v. Hobbs has been far less dramatic. Indeed, where Holt has been discussed at all, it has been almost universally praised, despite its similarities to Hobby Lobby. Holt concerned the right of Arkansas state prisoner Abdul Muhammad to grow a half-inch beard in accordance with his Muslim faith. In a unanimous decision, the Court vindicated Muhammad’s right to observe this peaceful practice, protests from Arkansas penal officials that a half-inch beard would interfere with their ability to identify prisoners and prevent contraband smuggling notwithstanding.

The unanimity of the Court in Holt, taken in light of the sharp partition in Hobby Lobby, is striking. Indeed, this fact, along with the intersections of the two cases, did not escape the notice of the Justices. Writing for the Court in Holt, Justice Samuel Alito ’72 cited Hobby Lobby not once, not twice, but nine separate times. It is clear from his writing that he viewed Holt as a natural companion to Hobby Lobby. Not to be outdone, Justice Ruth Bader Ginsberg (the author of the principal Hobby Lobby dissent) wrote separately to distinguish the cases. Her argument, perhaps the implicit argument in the minds of many Hobby Lobby opponents, was one of scope. Ginsberg wrote, “Unlike the exemption this Court approved in Burwell v. Hobby Lobby… accommodating [Muhammad’s] religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”

This concept of “forcing beliefs on others” was central to arguments of Hobby Lobby’s opponents. Hobby Lobby allegedly sought to force its workers to make certain decisions about birth control usage by taking away the opportunity for female employees to purchase the contraceptive method most consistent with their own beliefs. The case was depicted as setting one freedom (religious liberty) against another (women’s rights). Yet, a closer examination of Hobby Lobby, in light of Holt, will demonstrate the fallacy in this view. The rhetoric of competing rights is just that – empty rhetoric. The opposition to Hobby Lobby is really an opposition to a public exposition of faith, a faith in conflict with progressive principles.

Holt and Hobby Lobby were decided under the similar statutory protections of the Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, which prevents laws from burdening religious exercise unless the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” In essence, the Court must ask whether the government has a truly strong interest behind imposing its regulation and whether that regulation represents the least burdensome manner of advancing said interest.

In Holt, the government’s interest in prohibiting contraband smuggling by forbidding beards failed the compelling interest test due to the fact that some prisoners received medical exemptions for beards and all prisoners were allowed to grow much longer head hair. Furthermore, although the state’s interest in prisoner identification was seen as compelling, the no-beard policy failed the least restrictive means test. A prison could easily take multiple photographs of prisoners, with and without beards, to resolve identification problems.

Let us now ask ourselves: With Muhammad’s religious freedom vindicated by the Court, was anyone hurt? Certainly, non-Muslim prisoners were made no worse off than before. Furthermore, the prison system was also undeniably made neither less safe nor less stable. True, taking additional photographs might impose negligible costs on the prison, but this seems a small price to pay for religious liberty. Thus, we can conclude that Ginsberg is essentially correct in her assertion that vindicating Muhammad’s free exercise does no harm to non-believers.

But what about her assertion concerning Hobby Lobby? In Hobby Lobby, the Court found that while the government may have a compelling interest in advancing women’s health and providing cost-free contraceptives, a regulation forcing Christian business owners to pay for the coverage of objectionable birth control is not the least burdensome manner of advancing that interest. In fact, the Court noted, the government had already created an alternative, less burdensome option. In accommodating religious non-profits, the government had directed their insurance companies (rather than the non-profits themselves) to pay the costs of the objectionable contraception. Thus, the Court held that Hobby Lobby’s owners could not be forced to pay for the four contraceptives to which they objected.

Now let us ask ourselves: Who is made worse off by the Court’s vindication of religious liberty for Christian business owners? Who is “detrimentally affect[ed]”? Not female employees, certainly. Regardless of the rhetoric surrounding the case, female employees neither had nor lost access to cost-free birth control. The government’s non-profit accommodation has been extended to companies like Hobby Lobby, ensuring that these women will be able to continue purchasing whatever method of contraception best fits their beliefs and medical situation. Although the government may have incurred some small administrative cost in re-writing its accommodation, this cost is clearly miniscule. If anything, the biggest losers are the insurance companies (hardly sympathetic characters), who now have to cover cost-free contraception in place of Christian business owners. And the net cost to insurance companies is arguably negative, as covering contraceptives may reduce the rate of pregnancy and the associated costs of maternal healthcare.

Ultimately then, neither of these cases represents a question of competing rights nor requires the subordination of one person’s interests to another person’s faith. At their heart, these cases answer only one straightforward question – has government impermissibly restricted the free exercise of religion? Though these cases represent the extremes of the convenience spectrum (Hobby Lobby: public and controversial, Holt: private and small-scale), they show no substantive distinctions in their merits. If we uphold the right of free exercise for Abdul Muhammad, we must uphold that same right for Hobby Lobby’s Christian owners. We cannot, in good faith, take Ginsberg’s position. We must either support robust religious freedom for all or bite the bullet and accept a mere religious liberty of convenience. It would be a grave mistake to choose the latter option.

Christine Smith is a junior from Madison, Connecticut. She is majoring in the Politics Department and can be reached at ccs3@princeton.edu

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