Hobby Lobby: Perception is the only Reality

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Businesses aren't people! How can they have religious freedom rights? Businesses should not be able to deprive women of access to contraception! Religious freedom protects people's right to believe in a myth! How silly! Hobby Lobby threatens civil rights.


These are among the many reactions to a Supreme Court decision that may be far more modest than its critics fear.

The Court's actual holding may prove largely irrelevant, but here goes:

1. Individuals who form businesses don't sign away their constitutional rights.
2. Closely held businesses are alter egos of their owners, differently from publicly held corporations.
3. The Greens, owners of Hobby Lobby, had a sincerely held religious belief that certain contraceptives work as abortifacents, and they cannot conscientiously fund insurance benefits for workers that include these.
4. The Federal Government has set up a system for providing such benefits to those women employed by religious organizations who object to providing these benefits, and the same system can easily be extended to female employees of closely held businesses holding the same religious objection.

So, the Supreme Court applied the Religious Freedom Restoration Act, a legal test that protects fundamental rights, and found that upholding the rights of business owners did not require depriving their female employees of access to contraception, so it was the rare case of a "win-win." Yet the real significance of the case may well lie, not in its actual holding, but in the perception of the case, which has become the reality.

To the religious right, the opinion is a rare oasis of hope in the desert of cultural hostility to religion in general, and religious liberty in particular. To the left, the decision is a harbinger of danger on the horizon, the triumph of corporate rights over individual rights, the triumph of religious wackiness over civil rights and women's rights.

Both sides are using the case as a political opportunity, spinning it to their advantage. In such a climate, the reality of the opinion becomes obscured by the perception. The reality is a modest but important win for religious freedom. It is right to recognize that business owners don't forfeit their rights when they start a business. Even adult businesses enjoy first amendment protections!

The left conveniently ignores the Court's finding that the Feds already have a system in place to provide contraceptive coverage to women whose employers object. Thus, while the left complains about sacrificing the rights of women, the Court didn't agree that any such sacrifice is necessary. It remains for Congress to make the appropriate adjustments.

But the decision protects a religious belief that most Americans regard as spurious – that certain types of contraception cause abortions, and are immoral. The media frenzy surrounding the case only make religion and religious liberty look bad. It fuels the attitude that religion is a myth, and why should the law protect people's rights to believe what is not real, especially when those beliefs are harmful to the rights of others.

This is the current trend in the legal academy, which increasingly questions whether the law should protect religious freedom at all. In the aftermath of Hobby Lobby, there is a concerted effort to repeal the Religious Freedom Restoration Act. This would be an unmitigated disaster, and is being closely monitored.

With the liberal elites viewing Hobby Lobby as one of the worst decisions of recent memory, since the Citizens United case held that corporations have free speech rights for purposes of political campaign contributions, religious liberty is on the defensive.


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