A Neo-Trad’s Guide to the Hobby Lobby Decision

Between two seminar papers (and two more in the works), researching for an Amicus brief, and work, I have invested more time into the Religious Freedom Restoration Act (RFRA) and Hobby Lobby than I have in many of my past relationships. Yesterday’s decision by Justice Alito was a major relief and a victory for adherents of all religious faith. Here are my takeaway’s and concerns:

First, the majority’s decision regarding corporations leaves traditionalists like myself much to be grateful for. On the one hand, the Court says corporations do not exist solely for making profits, and should be free to pursue humanitarian and religious good in the world. On the other hand, the Court avoids the dangers of libertarian materialistic excess by explicitly pointing out that extending religious freedom to corporations is good because it protects real people, not abstractions or legal fictions. This is also why the Court limited the decision to closely held corporations, which are owned and governed often by families. Families who start businesses together can now rest assured they will not have to check their religion at the door of their own creations.

Second, a minor cause for caution is to remember this case did not affirm the constitutional rights of anyone. The decision was decided under RFRA, which Congress passed and Bill Clinton signed in 1993. What Congress giveth it can also take away. It should be sobering to us all to realize that current First Amendment jurisprudence would not have protected Hobby Lobby, and that with a simple majority vote Congress can undo these protections and leave people of faith to suffer the consequences. As humbling as it may be for conservatives to admit, the First Amendment has not protected us.

Third, it is also sobering to realize that Justice Alito, a reliable conservative, seems to imply that women’s access to contraceptives is a “compelling government interest” under RFRA. Alito did not decide the issue, but instead assumed it and decided on other grounds. In what is otherwise a solid win for conservatism, this concession could harm our movement most in the future. It may be that at present only the Catholic minded will appreciate the implications of such a decision, as they accurately did at Lambeth and in Griswold v. Connecticut, but by now we should all realize the dangers in imagining a right to sex separated from nature. Now it is not only a right, but also a “compelling government interest,” which functions as a get-out-of-jail-free card for most government actions. The dissent of the four liberal Justices combined with Justice Kennedy’s concurrence indicates a majority of justices agree on this question, and it will haunt conservatives in the future.

But those are the future battles of a war still raging. Today all people of good faith may breathe a sigh of relief.