Freedom of Religion and Obamacare: The Hobby Lobby Decision Explained

Because I feel it's necessary, based on all the misinformation and puzzlement I have been hearing, here is a plain-English explanation of what went down at the United States Supreme Court last week. I hope it will explain for laypersons, in and out of the United States, what everyone is talking about, with as little politicizing and legalese as possible. (If you're a regular reader, you already know what I think.)


I am an attorney licensed to practice in New York and New Jersey, and various federal courts, including the Supreme Court. I have 20 years of experience with constitutional issues. That being said, please be advised that this post (along with any others that may follow on the subject) represents my own interpretation of the Supreme Court's decision and should not be mistaken for legal advice. If you have specific questions, please consult directly with an attorney in your state.


A Little Legal Background. (I apologize for this, but it's necessary for a clear understanding of the issues.)


The First Amendment of the United States Constitution guarantees citizens, among other things, the right to free exercise of religion. As anyone could have predicted, though, the secular laws immediately began coming into conflict with people's religious practices on a fairly regular basis. Until 1993, the federal courts generally resolved these conflicts with a two-part test. They asked whether the law in question substantially burdened someone's right to practice their religion; if it did, they then inquired whether the law was needed to serve a compelling government interest. If it was, it would prevail over the individual's right to worship freely.


In 1993, the Supreme Court decided the case of Employment Division v. Smith. In that case, two Native American social workers had ingested peyote as part of a religious ritual, and when they subsequently showed up at work, they were fired from their jobs. When they applied for unemployment insurance, their claims were denied on the ground that their conduct - ingesting the peyote - had been illegal. When their case reached the Supreme Court, the Court held, under the "balancing test" I just explained, that while the law against peyote did burden the workers' rights to use the drug in their sacramental ritual, the anti-peyote law served a compelling government interest that outweighed that right. In other words, the peyote-eaters lost.


The holding in Smith caused a fair amount of outrage in legal and religious circles. Think about it: many Christians and Jews also regularly serve alcohol to minors as part of their rituals. That's illegal, but it's generally overlooked because of the small amount of the substance involved and because the practice is so common. Shouldn't the Native Americans, people reasoned, have their peyote ceremony overlooked too? And if not, shouldn't everyone be nervous about getting fired for taking part in routine religious rituals on the weekend? Yikes.


And so, in response, President Clinton signed into law something called the Religious Freedom Restoration Act (referred to as the RFRA). The RFRA changed the balancing test: now, the government could not substantially burden any religious practice unless that burden was the least restrictive means of serving a compelling government interest. That should do it, everyone thought. Least restrictive means. Compelling government interest. That's a very, very tough test for the government to pass.


Very Quickly - Birth Control Review

Just a quick note about the whole birth control thing - a brush-up on basic human reproduction, if you will, along with an explanation of some common ideology. You'll need this too.


If you believe that life begins at conception, you belong to one of two camps on the issue. There are people who believe that a human being is created the moment a human egg meets a human sperm. This is the most conservative group. And then there are people who believe that a human being is created when the mass of cells resulting in that meeting implants in the wall of a human uterus and starts growing (usually a couple of days later). Both groups oppose voluntary termination of established pregnancies (i.e., abortion), but the latter group is a little more flexible about birth control. That's because there are two common ways that birth control can operate: by preventing the meeting of egg and sperm in the first place (like a condom or a diaphragm, or sterilization surgery), or by preventing the recently-united egg-and-sperm mass from implanting and continuing to develop (like a Plan B "morning-after" pill or an IUD). Most traditional, taken-before-the-fact birth control pills operate both ways: they prevent ovulation, but they also make the wall of the womb inhospitable to implanting embryos, just in case.


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