Ginsburg's Passionate 35-Page Dissent of Hobby Lobby Decision

By Abby Ohlheiser, The Wire

30 June 14

n Monday, the Supreme Court sided with Hobby Lobby on the company's challenge to the Affordable Care Act's contraceptive mandate, ruling that the mandate, as applied to "closely held" businesses, violates the 1993 Religious Freedom Restoration Act. But the divided court's 5-4 decision included a dramatic dissent from Justice Ruth Bader Ginsburg, who called the majority opinion "a decision of startling breadth." Ginsburg read a portion of her decision from the bench on Monday.

Addressing the majority of her colleagues — including all but one of the six men sitting on the Supreme Court — Ginsburg wrote:

In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.

The justice goes on to criticize the opinion's interpretation of the religious freedom law, writing that "until today, religious exemptions had never been extended to any entity operating in 'the commercial, profit-making world.'"

The reason why is hardly obscure. 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. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations...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.

"In sum," Ginsburg adds about the free exercise claims at the heart of this case,“‘[y]our right to swing your arms ends just where the other man’s nose begins.’”

Justice Alito got a little prickly in his majority opinion about Ginsburg's strong criticism of their take on the case:

As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women employed by Hobby Lobby.” Post, at 2.1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.

Ginsburg seems to reply to Alito by suggesting that what Alito sees as a narrow, limited decision is essentially an invitation for lots of future challenges on religious grounds: "Although the Court attempts to cabin its language to closely held corporations," she writes, "its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate."

The full Ginsburg dissent is below: