Glawe: Supreme Court takes First Amendment protection too far

Michael Glawe

There should be rule where a person is not allowed to argue over the decision of the Supreme Court unless he or she has first read the majority and dissenting opinions. It took me a day and a half to read the opinion and research the legal references made. I did this in the midst of the rabble and tumult of social media, which was either jumping in euphoria or denouncing the decision in hushed tones. Compound that with the idle pre-planned response of partisans on both sides, who spoke without first delving into the case at hand. Of course, one could argue the decision was, to some extent, predictable.

The case is marketed either as a step forward in the fight for religious rights — though, as I’ll discuss later, some religious objections are shaky — or a setback for women’s reproductive rights. There are several components to the case, including the liberal boogieman of “corporate personhood,” but the issue of women’s reproductive rights is on the frontline. Ultimately, requiring the government to pick up the tab for contraceptives seems like a paradoxical way for the religious to claim victory — either Hobby Lobby pays for the contraceptives required by law or the government pays, to which Hobby Lobby files taxes. Though, as the majority opinion rightly notes, there isn’t a “less restrictive means” to paying taxes.

That silver lining isn’t as bright. The Court never denies the fact that the government has a compelling interest to provide cost-free access to the four challenged contraceptives. In fact, the Court affirms it: “The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of [Religious Freedom Restoration Act].” The government just failed to provide the “least restrictive means” in furthering that interest. That’s where the government lost its case — it already had a system set up for religious nonprofits in which Hobby Lobby could participate.

Indeed, in his concurrence, Justice Anthony Kennedy furthers this affirmation by saying, “It is important to confirm that a premise of the Court’s opinion is its assumption that the [Department of Health and Human Services] regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” Sounds as though women’s rights are being furthered, in some minuscule respect.

Any reasonable person will notice the clear political opportunism behind Hobby Lobby’s claims to religious discrimination. Until the contraceptive mandate became a clear political issue and the owners of Hobby Lobby knew very well which side they were on, the company’s health insurance program actually covered Plan B and Ella, both of which were among the four contraceptives it refused to offer under the mandate. Perhaps this slipped the owners’ minds when filing suit. How serendipitous.

It is quite clear that Hobby Lobby’s religious objections to the mandate are not sincere but surreptitious. This is why I say religious objections can be quite tremulous.

Say we accept Hobby Lobby’s sincere religious objection to providing “abortifacients.” Three of the four types of birth control opposed by Hobby Lobby — two versions of the “morning-after pill” and two kinds of intrauterine devices — are in fact not abortifacients. Abortion certainly makes me queasy, and I am for the most part against it. However, Hobby Lobby’s line of argument fails in the field of definition. Indeed, the Court takes note of this: “The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, do not so classify them.” According to the medical establishment, the copper IUD is the only contraceptive that cannot be ruled out, though it is very unlikely to cause abortion in the context of the correct definition.

The sincerity of religious objections in court must be questioned if certain religious protections are to survive. Michael Potter, CEO and founder of Eden Foods, is now one of a handful of owners whose cases have strengthened due to the Hobby Lobby decision. Many refuse to cover any form of contraception, not merely the forms opposed by Hobby Lobby. Potter  believes contraceptives are “lifestyle drugs.” A reporter for has revealed this man to be another shameful political opportunist. In an interview with, Potter was asked why he was suing if he had no particular objection to contraceptive use, to which he responded by saying, “Because 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.”

So, Potter’s real issue isn’t with contraceptive use — he stated, as a man he has no “business in what women do” — but he does take issue with the methods by which the federal government uses to provide contraceptives to women. That denigrates the true power of “religious freedom” and clearly Potter is using his beliefs as leverage.

What is even more appalling in this case, though, is that Hobby Lobby and other corporations are protected under the Free Exercise Clause. They are treated as a person. Liberals are painfully reminded of the Citizens United case, but corporate personhood goes back much farther. In the Dictionary Act, which is referenced in the Hobby Lobby case, the words “person” and “whoever” include in their definitions corporations and other such entities. Where is the outcry and protest over this?

As Justice John Paul Stevens insisted in the Citizens United case, “Unlike natural persons, corporations have ‘limited liability’ for their owners and managers, ‘perpetual life’ and ‘favorable treatment of the accumulation and distribution of assets.’” Stevens went on to point out that corporations do not have consciences, beliefs, feelings or thoughts. They are not “people” or “human” — they’re unnatural.

In Hobby Lobby, the Court should have followed Ruth Bader Ginsburg’s confinement of religious exemptions in order to protect the very thing that allows people to hold their beliefs. I guess my definition of “people” is a bit imprecise and outdated in this brave new world of First Amendment protection.