As Presbyterian Blues has followed the Hobby Lobby case and others involving religious rights, special attention has been focused on, first, the core belief involved and second, the relationship of that core belief to the ultimate offense against religious sensibilities. This is because it is not beliefs as such that are denied – the government does not say you can’t have religious beliefs about abortifacients – but some resulting activity. The Hobby Lobby case is not about coercing individuals to take abortifacients, but about the religious offense they undergo when others potentially use them.
This was a central issue in the SCOTUS decision, with the Alito majority opinion and the Ginsburg dissent taking different sides. Hobby Lobby (and the other businesses) would have lost if the majority agreed with the dissent on that issue.
Simply put, the individuals in charge of the closely held corporations believe it is immoral to provide mandated coverage that enables employees to use abortifacients. As the majority opinion describes it,
This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.
Rather than attempt to resolve this causation question, the majority opinion takes a deferential position: “it is not for us to say that their religious beliefs are mistaken or insubstantial.” It was enough that such a belief, i.e., a belief on what substantially enables others to act in an immoral way, is sincere. And, because the belief was received as sincere, the HHS regulations had to meet a demanding test they failed to pass; Hobby Lobby wins.
The Ginsburg dissent acknowledges the sincere beliefs but goes further in exploring the connection of those beliefs to the offending activity:
. . . the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. …“[n]o individual decision by an employee and her physician—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employer’s] decision or action.”
As pure reason goes, this is a strong argument. Ginsburg says beliefs themselves are not the proper subject of the court’s approval, but the connection between those beliefs and the ultimate acts that burden them is an objective matter the court may decide.
Whether the majority had the better of it as a matter of philosophical argumentation is less than clear but deference to religious beliefs is better than meddling in them. The result of the Hobby Lobby case – a fairly broad protection of religious rights – is a good result. Only time will tell if the analysis on this point will be a bulwark of religious rights or if Ginsburg’s dissent will re-surface in a majority opinion.