A Treasury of Justice Ginsburg's Real Talk In Her Hobby Lobby Dissent

One bright, shining light did come out of the Supreme Court's decision in the Hobby Lobby cases this morning: a 35-page dissent by Justice Ruth Bader Ginsburg. You might find it depressing to be the position of seizing what hope is left from the losing parties on this one, but we have to learn to accept it.

In their majority decision, the men of the Supreme Court (minus Stephen Breyer) repeat ad nauseam that they believe that they have sliced the Swiss cheese very narrowly on this one. Over and over again, they remind you that they are only holding that the text of the Religious Freedom Restoration Act (RFRA) requires the protection of a closely-held, for-profit corporation's religious rights to refuse to cover contraception. Is that wordy, multi-clausal, a run-on sentence? Yes, but they need all those words in there to make it clear that they are being narrow, careful, and reasonable.

Ginsburg, from the get-go, did not buy their act:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

There is much pre-emptive dismissal of that "startling breadth" phrase in both Samuel Alito's majority opinion and Anthony Kennedy's concurrence. This suggests that they actually found it germane.

But they should have had a closer look at the rest of her judgment too, in which Ginsburg delicately, smoothly, and cordially hands them their asses. People are using the usual words—scathing, blistering—in describing this dissent, but it isn't that at all. It is cool and measured and totally correct. This might be the Canadian in me talking, but there is something I love about the relative subtlety with which Ginsburg gives the shiv here. It cuts deeper that way.

I mean, have a look for yourself.

1.

The first of Ginsburg's daggers is honed in terms law nerds will best appreciate, but: Among the bases of Alito's opinion is the idea that, based how broadly the RFRA was drafted, the justices could deduce that Congress had obviously meant to protect the religious rights of for-profit corporations. Ginsburg points out that Congress in fact directly addressed this particular question in its debates over the Affordable Care Act itself, which only saw contraceptive coverage added in its later stages, through a "Women's Health Amendment":

While the Women's Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called "conscience amendment," which would have enabled any employer or insurance provider to deny coverage based on its asserted "religious beliefs or moral convictions... Rejecting the "conscience amendment," Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.

Real-talk, translated: You idiots, Congress has already spoken on this specific issue. And it came to the exact opposite conclusion you now attribute to it.

2.

The only rights discussed in Alito's and Kennedy's opinions are those of the company owners. Ginsberg takes a polite blowtorch to fiction that the owners rights' to their "sincerely-held religious belief" are the only relevant ones:

The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations' employees and covered dependents. It would deny legions of women who do not hold their employers' beliefs access to contraceptive coverage that the ACA would otherwise secure... In sum, with respect to free exercise claims no less than free speech claims, "'[y]our right to swing your arms ends just where the other man's nose begins.'"

In other words, these religious rights trample all over the ovaries—er, rights to bodily autonomy—held by the thousands upon thousands of women who work for Hobby Lobby.

Later on, getting more direct, she throws a dart at Justice Kennedy:

I part ways with Justice Kennedy on the context relevant here. He sees it as the employers' "exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations..." I see as the relevant context the employers' asserted right to exercise religion within a nationwide program designed to protect against health hazards employees who do not subscribe to their employers' religious beliefs.

3.

In a footnote, Justice Ginsburg is also less afraid to have changed her mind than certain other people, who shall go unnamed:

The Court points out that I joined the majority opinion in City of Boerne and did not then question the statement that "least restrictive means . . . was not used [pre-Smith]." Ante, at 17, n. 18. Concerning that observation, I remind my colleagues of Justice Jackson's sage comment: "I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday."

I like to think she's directing this at her best friend on the court, whose identity I'll let you Google. But I'm open to your speculation.

4.

Justice Ginsburg delicately points out that the court has a less-than stellar record of understanding religious pluralism in America:

Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community... The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court's attention. One can only wonder why the Court shuts this key difference from sight.

I detect a small bit of sarcasm in that "one can only wonder."

5.

Ginsberg also doesn't see good reason for the Court to have placed such emphasis on the "closely held" nature of these corporations.:

... as Hobby Lobby's case demonstrates, such [religious exercise] claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not diffuse. "Closely held" is not synonymous with "small." Hobby Lobby is hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons.

It doesn't look like quite such a triumph for individual rights when the rights of 72,000 are weighed against a small family's, does it?

6.

Only Justice Ginsburg, in this decision, seems to understand how health insurance actually works. After all, at no point would Hobby Lobby's owners, the Greens, have to saddle up and get down to their local dime store to buy Plan B for the company supply closet. Instead:

... [the ACA] calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans. Those plans, in order to comply with the ACA, see supra, at 3–6, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services.

Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers... Any decision to use contraceptives made by a woman covered under Hobby Lobby's or Conestoga's plan will not be propelled by the Government, it will be the woman's autonomous choice, informed by the physician she consults.

This bureaucratic reality doesn't present quite as convincingly as a free-exercise-of-religion dilemma.

7.

In a footnote, Ginsburg backhands the four conservative justices:

Although the Court's opinion makes this assumption grudgingly...one Member of the majority recognizes, without reservation, that "the [contraceptive coverage] mandate serves the Government's compelling interest in providing insurance coverage that is necessary to protect the health of female employees."

To be clear, that "Member" is Justice Anthony Kennedy, re-purposed here as the stake she drives into the heart of the other four.

8.

And then in the last paragraph we get not a battle-cry, but a rueful observation:

Indeed, approving some religious claims while deeming others unworthy of accommodation could be "perceived as favoring one religion over another," the very "risk the Establishment Clause was designed to preclude." Ibid. The Court, I fear, has wandered into a minefield.

"I fear." It's good to know that at least Justice Ginsburg still has a sense of humor about this.

[Illustration by Jim Cooke, source photo via AP.]