From the caterwauling on the left over the Hobby Lobby case one would never guess that the statute that guaranteed the religious accommodation for the Hobby Lobby owners in the case was one passed overwhelmingly by Congress (97-3 in the Senate and by a voice vote in the House) and signed into law by a Democratic president.
Now the Democrats, some of whom voted for the bill, cry foul. They didn’t mean to cover closely held corporations, they say. In that case, they should have complained when there was an exemption afforded to not-for-profit corporations. There was no outcry.
In fact the “we didn’t mean it” hooey was roundly shot down in the majority opinion. Justice Samuel Alito wrote:
Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within [the Religious Freedom Restoration Act’s] definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
More to the point, the Dictionary Act (yes, there is such a thing), which the court is obligated to use, defines “person” in the RFRA to encompass “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” The “we didn’t mean it” argument is even less defensible when one considers that the court has repeatedly considered “RFRA and free-exercise claims brought by nonprofit corporations . . . and [the Department of Health and Human Services] concedes that a nonprofit corporation can be a ‘person’ within the meaning of RFRA.” This issue is not even a close call.
But let’s entertain the possibility that lawmakers didn’t understand what they were passing (very probable) or are simply have changed their minds. Fine. Let Democrats introduce and try to pass a bill that strips people like the Hobby Lobby owners of their RFRA protections. Red-state senators holding on to their seats with their fingernails might be reduced to hiding under their desks. They might find that all sorts of religious communities – Hasidic Jews, devout Muslims, etc. – would see this as a threat to their religious freedom and let their representatives know loudly that this is not acceptable.
The irony here is that no inconvenience whatsoever will befall any woman. By regulation, HHS can simply pay for these four contraceptive drugs directly. To assert that the decision burdens women is therefore, again, flat wrong. It does, however, burden “progressives” who want no exceptions to its edicts, no matter what the damage done to people of conscience. The reaction to the case suggests desperation to cook up a 2016 issue and maybe some measure of embarrassment that a law they passed with nary a peep should have done in contraception absolutists. The reaction on the left also highlights the totalitarian impulse that now routinely afflicts the left. How dare people of faith get a special accommodation! (How dare a speaker with different views speak at graduation!) The outrage over the decision has become far more interesting and revealing than the case itself, which boiled down to an ordinary free-exercise case.