How to Kill the Hobby Lobby Decision in One Not-That-Easy Step

Over at The Nation, Katha Pollitt proposes a solution to the ongoing rain of fire, brimstone, rubber and glass that followed the Supreme Court's June decision in Hobby Lobby. Repeal the Religious Freedom Restoration Act, she says, and be done with it. Ayup.

The RFRA, you might recall, is the little piece of peyote-rights-inspired legislation on which the Court relied in Hobby Lobby. The idea was that the government should always have to justify, in the most compelling terms, any infringement on anyone's freedom of religion. It was enacted with the support of a broad coalition of right and left, all the colors of the American democratic rainbow. It was all very noble, then.

Now, 20 years later, it was the RFRA that chiefly gave the Supreme Court the cover of Congressional intent to hold that Christian employers need not contribute a single red cent to subsidize the medical costs of all that whoring around their employees do. And it stands ready to introduce a complicated web of exceptions for the nuttily religious into everyday American life. Trolling Satanists have already leapt into the game.

Pollitt's arguments to repeal it are mainly policy-based. She, like you, simply doesn't think that it makes sense to exempt everyone from everything they don't happen to believe in:

Imagine an anti-vaxxer a few years hence claiming the right not to be informed of the dangers of measles. Same-sex marriage should be legal because a clergyperson wants to perform them? What happens when a Mormon elder or a Muslim imam claims the right to express his faith by performing polygamous marriages? Even if religion were not the basically conservative social force it is in American life, expanding the religious freedom of individuals or corporations is simply not a good way to make public policy.

Yes yes yes, that's all right and fine about the public good. But there is a sneakier, more vindictive reason to like the notion of repealing the RFRA: It would make the conservative wing of the Court squirmingly uncomfortable. And it would do so particularly for one man whose squirming would please us in the SCOTUS-skeptical masses, Justice Antonin Gregory Scalia, who would have to do a 180 on this entire issue. Again.

Scalia joined in the majority decision in Hobby Lobby and didn't write it himself. But his silence seemed somewhat calculated. Scalia had been the one who wrote the majority opinion in Employment Division v. Smith, saying there was no private religious right to use peyote. It was Smith that the RFRA was intended to overturn. And it was in Smith that a certain justice was absolutely 100 percent sure that it would be a disaster to start making religious exemptions for every wannabe apostle in America.

It's hard to tell the difference between Pollitt above, and Scalia's reasoning in Smith (I've removed citations to make this more readable):

Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service, to the payment of taxes; to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.

Send Scalia a postcard with this paragraph pasted on it and "Precedent" on the front the day the RFRA is repealed. He'd be stuck in flypaper of his own making. Congress overturned him, but he embraced the Congressional view of the situation wholeheartedly in Hobby Lobby. Without the RFRA then he'd be forced to go back to his original opinion. He would be flip-flopping.

It's simple, which doesn't mean it's easy. Pollitt's low on the practical matter of, you know, getting enough votes in Congress to repeal the law—but the chance to troll Scalia this hard should at least provide additional passion for those seeking to climb that particular mountain.

[Image via Getty.]