Long after her career as a legal activist, well into her time as a judge, Ruth Bader Ginsburg became a popular-culture heroine. Her dissent in Burwell v. Hobby Lobby, a 2014 case about mandatory contraceptive coverage, played a part in this newfound celebrity. Fans called it “brutally awesome.” People magazine noted that it had even been set to music. Now that Ginsburg has died, the dissent is being remembered as a highlight of her tenure.
Even people who own RBG coffee mugs and tote bags, though, should be glad that Ginsburg’s dissent has not held up over the years. She predicted the decision would lead to calamities that have thankfully not come to pass.
The case arose from the 2010 Affordable Care Act, also known as Obamacare, which led to regulations requiring many employers to cover 18 forms of contraception in their health-insurance plans. Hobby Lobby’s owners objected to four of them. Five justices ruled that the Religious Freedom Restoration Act of 1993 allows Hobby Lobby not to cover them.
Ginsburg warned that the decision would cause “havoc” as companies sought all manner of religious exemptions from laws. Would this privilege, she asked, “extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids and pills coated with gelatin (certain Muslims, Jews and Hindus); and vaccinations (Christian Scientists, among others)?” There was “little doubt that such claims will proliferate,” she said, and courts would then have to get into the dangerous business of deciding the merits of various religious beliefs.
There was ample reason to doubt Ginsburg’s alarmism, which was why even some liberal legal experts said that the majority’s decision was more limited than she portrayed it. The majority opinion, written by Justice Samuel Alito, noted that there was no evidence that employers excluded vaccinations and the like from their health plans even when regulation left them free to make those decisions.
Judges do not have to weigh the merits of religious beliefs to apply the religious-freedom law. They must instead decide whether the government, in placing a substantial burden on the free exercise of religion, is serving a compelling interest using the least restrictive means. Thus Alito did not say whether Hobby Lobby’s owners were reasonable or unreasonable in objecting to facilitating the use of the four contraceptives.
It was the dissenters, including Ginsburg, who opined on that question. Their argument hinged on the idea that the owners were being told to provide contraceptive options, not to use or approve of those options. By that logic, it wasn’t a serious infringement of their religious liberty, because their connection to the actual use of the contraception was “too attenuated.” Alito replied that it was for the religious believers to decide whether their faith really forbade the action the government was trying to force them to take on pain of steep fines.
That’s where the argument stood in 2014. Because Ginsburg’s dissent made specific predictions, we have had a chance to test who was right. Looking at the evidence in 2018, two law professors concluded that “Hobby Lobby has not had a dramatic effect on government win rates in religious exemption challenges, nor have religious claims undergone a dramatic expansion in volume following Hobby Lobby.” No companies have tried to get out of covering vaccinations or blood transfusions. Courts have not had to make any judgments about different religious groups’ beliefs about any of these matters.
The typical religious-freedom-law claim in federal court looks a lot more like the various cases Native Americans have advanced to get exemptions from the federal ban on the possession of eagle feathers without a permit. These cases don’t involve corporations, they don’t invite judges to address whether the feathers should have religious significance, and they often don’t succeed.
The scope of religious liberty remains a live issue. Democratic presidential nominee Joe Biden says that if he is elected, he will work to end the exemption Hobby Lobby won in court. If the Supreme Court takes up the issue again, the justices will have the benefit of learning from Ginsburg’s mistaken predictions.