The company is defying shelter-in-place orders in various states, and Dahlia Lithwick of Slate says it’s no surprise: The Supreme Court already gave it the message that it’s above the law. Its owners objected to providing insurance coverage to their employees for certain contraceptives on the ground that those contraceptives can act as abortifacients (as the Obama administration acknowledged). In 2014, the Court ruled that they could refrain from offering that coverage.
The way she puts it is that “no lesser an institution than the U.S. Supreme Court announced that the company could simply ignore federal law when it wanted to deny contraceptive care to its employees.” This characterization is false. The Court announced that the regulations implementing the Affordable Care Act had to include the exemptions mandated in the Religious Freedom Restoration Act (RFRA). That’s not ignoring federal law; it’s applying it. (Lithwick also, by the way, misrepresents the religious beliefs of the company’s owners.)
“Having been blessed with the right to skirt the law as it sees fit, regardless of the harms it rains down on everyone else,” Lithwick continues, “Hobby Lobby strides into this pandemic self-certain, anti-science, and at war with the country—just as Samuel Alito invited it to be.” The company has been blessed with no such right. To win an exemption under RFRA, the company would have to show that the federal law or regulation in question imposes a substantial burden on religious freedom and does not serve a compelling governmental interest in the least restrictive way possible.
The company is not alleging any such thing. It is not, on the evidence Lithwick presents, asserting a religious obligation to keep its doors open (or prohibition on shutting them). It is not, again on that evidence, defying any federal law but rather state orders—orders to which the federal RFRA statute would not apply, as the Supreme Court ruled more than two decades ago.
Lithwick wants us to see Justice Ginsburg’s dissent from the ruling in Hobby Lobby as prescient, but subverts her own goal by quoting one of its dumbest lines: “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so for-profit corporations.” It’s a comment that could be made only by someone with very limited familiarity with religious organizations.
Ginsburg didn’t warn that the ruling would make Hobby Lobby unmindful of its social obligations, which would have been a weird stretch. She warned that there would be a flood of cases from, for example, Jehovah’s Witnesses who didn’t want to cover their employees’ blood transfusions. Nothing of the sort has happened.
Hobby Lobby’s owners do not appear to be behaving well these days. It still deserves religious freedom. And to the extent they have absorbed the wrong lesson about their obligations before the law, maybe it’s because they read the Supreme Court’s decision as carelessly as such commentators as Lithwick.