"The minimal rule should be, if you want one [a religious exemption], prove you deserve it."

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Danger sign: The Supreme Court has already expanded Hobby Lobby decision
By Michael Hiltzik, July 2, 2014

The Supreme Court wasted no time in delivering a message to anyone who thought its Hobby Lobby ruling was limited to religious objections to coverage of purported abortion methods:

You're wrong.

The day after handing down the Hobby Lobby decision on Monday, the court issued orders pertaining to six pending cases in which employers claimed religious objections to all contraceptive services required under the Affordable Care Act. The court either ordered appeals courts to reconsider their rejection of the employers' claims in light of the Hobby Lobby decision, or let stand lower courts' endorsement of those claims. 

In at least one of those cases, the sincerity of the employer's religious objections is open to question. That shows why allowing a broad "religious" exemption from a federal law can be atrociously bad policy. More on that in a moment.

Tuesday's orders are just the beginning: The Becket Fund, the religious law firm that represented Hobby Lobby in its legal case, lists 49 pending federal cases in which for-profit companies have brought purportedly religious objections to the ACA. An additional 51 cases involve nonprofit organizations. The floodgates aren't about to open--they're already open.

Obviously, when Justice Ruth Bader Ginsburg in her dissent called the Hobby Lobby ruling "a decision of startling breadth," she didn't even scratch the surface.

The companies that brought the six cases dealt with by the court on Tuesday are all owned by Catholics or their families. They employers of a few score workers ranging up to several hundred.

Their objections all apply to the ACA's mandate that their health insurance policies cover contraceptive services to women without co-pays or deductibles. But where the Green family, the owners of the Hobby Lobby crafts store chain, objected only to four birth control devices or methods they considered "abortifacients"--promoting abortions--the others object to all contraceptives, and more.

For example, the Korte family, which owns an Indiana construction company, refuses to pay for or support not only "contraceptives, sterilization, abortion, (or) abortion-inducing drugs," but "related education and counseling." (Emphasis added.) In other words, if a woman asks her doctor for advice on reproductive options, the consultation may not be covered. 

The most interesting case, however, was brought by Eden Foods, a Michigan "natural foods" firm. Its Catholic owner, Michael Potter, claimed in his lawsuit that "participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients" offends his "deeply held religious beliefs."

The appeals court that rejected his motion for an injunction against the mandate was skeptical. Potter's real position, it suggested, resembled more "a laissez-faire, anti-government screed." The evidence came from an interview Potter gave last year to Irin Carmon of Salon, in which he stated:

"I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story."

This hint that Potter had merely swaddled an anti-government rant within a "religious" blanket illustrates the main problem with Justice Samuel Alito's majority opinion in Hobby Lobby: it takes claims of religious scruples for granted. 

But how are government agencies or the courts to know when claims of religious piety are just pretexts for some other viewpoint, such as libertarianism or misogyny?

There's no evidence in the record of Tuesday's cases that the lower courts conducted any inquiry into the sincerity of the business owners' religious claims or beliefs. Alito's majority opinion Monday certainly didn't offer any guidelines for validating what he established as a qualification for exemption from the ACA mandate.

In a case involving the Gilardi family, owners of an Ohio produce firm, Judge Janice Rogers Brown of the Washington, D.C., circuit appeals court wrote in a 2-1 decision overturning the mandate that "this case is not about the sincerity of the Gilardis’ religious beliefs, nor does it concern the theology behind Catholic precepts on contraception. The former is unchallenged, while the latter is unchallengeable."

But why should that be? If the only requisite for an exemption from this important mandate is a religious claim, why should it not be subject to challenge? Otherwise, how do we limit the exemption only to those with genuinely religious scruples?

(It's proper to observe that Brown didn't actually care much about the religious grounds of the Gilardis' case, though she dressed up her ruling as one dealing with the free exercise of religion. She overturned the mandate in part on the manifestly misogynistic and nonreligious grounds--never mind that she's a woman--that the government hadn't shown it has an interest in "the compelled subsidization of a woman's procreative processes." The court in its Tuesday orders let her ruling stand.)

Shouldn't the courts, at the very least, determine if a family-owned company follows its religious precepts consistently? If this were the test, by the way, Hobby Lobby itself might fail: its 401(k) plan for employees has invested via its mutual funds in companies that manufacture and distribute precisely those drugs and devices that it objects to providing via its health insurance plan. The investments were first disclosed by Mother Jones, but are documented in the firm's public filings.

The investment options for the 401(k) are chosen, and the worker contributions matched, by the firm--how come its religious scruples didn't apply there?

Allowing exemptions to a federal law based on "unchallenged" and "unchallengeable" claims of subjective belief is the antithesis of secular law. That may be why religious exemptions have been handed out very carefully, until now.

The minimal rule should be, if you want one, prove you deserve it. In the past, courts have been loath to conduct such inquiries, because they can lead down a bottomless, subjective rabbit hole. But the Supreme Court has now turned claims of subjective belief into an enormous loophole. Somewhere, a court may try to narrow that loophole so not just anyone can fit through it. That's bad for the law, and it may be bad for religion, too.
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