The Briefing
June 30, 2014
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Monday, June 30, 2014. I’m Albert Mohler and this is a special edition of The Briefing, coming on the final day of the current US Supreme Court’s term. And a big day it was with the court handing down several decisions, two in particular, both of which will have long-lasting consequences. But the most important of them and the most awaited of all the court’s decisions of this term was the case known as Hobby Lobby. It has to do with three corporations: Hobby Lobby and Mardel’s and, the third corporation, Conestoga Wood Specialties. The Hobby Lobby Company and Mardel’s are owned by the Green family of Oklahoma. Conestoga Wood Specialties is owned by the Hahn family of Pennsylvania. Both families went to court, arguing that the contraception mandate handed down by the Obama Administration violated their Christian convictions. In particular, the contraception mandate, as it specified, required coverage of four specific products, and those products, at least at times, are suspected of being abortifacient in effect, that is, of causing early abortions, rather than preventing the fertilization of an egg. For that reason, these two families and their corporations headed to court and the case eventually arrived at US Supreme Court with the decision being handed down today.
And a big decision it was. Almost immediately some decisions handed down by the nation’s highest court are recognized as being landmarks. That’s for two reasons. In the first place, the landmark decision is one that is referenced going forward as being a decisive turning point in the jurisprudence of the nation’s highest court. But the second reason is also very important: landmark decisions send signals throughout the political system, such that even the other branches of government and the culture at large must take very careful note of a decision or a direction being very much indicated by the court’s action. Today’s decision in the Hobby Lobby case represents just that kind of landmark decision: a huge win for religious liberty and the 5-4 decision will now stand as one of those landmark cases that will reshape the religious liberty debate for generations yet to come.
But another very interesting aspect of this case was also very apparent. The 5-4 decision revealed not only a big win for religious liberty, but a very divided court over some the most basic freedoms enjoyed by Americans, recognized within the United States Constitution. The majority opinion was written by Justice Samuel Alito who declared that the Obama Administration had failed, and had profoundly failed, to meet the demands of the United States Constitution and of the Religious Freedom Restoration Act passed by Congress in 1993. That act, known as RFRA, established a new baseline for the understanding of religious liberty in the United States, and that act itself responded to a previous decision by the US Supreme Court. In Alito’s judgment, by mandating that the corporations provide all forms of contraception or birth control for all female employees at no cost, the government had burdened the consciences of the Christian owners of Hobby Lobby, Mardel, and Conestoga Woods—the three companies involved in the decision.
A couple of things to note about the decision immediately. One thing is that it applies only to closely-held corporations, to privately-held corporations. This isn’t a decision that has anything to do with General Motors, but it has everything to do with Hobby Lobby, Mardel, and Conestoga Wood Specialties. What’s the distinction? Those are not publicly-traded companies. They’re not massive companies that are traded on the stock market. There are no stockholders outside the two families involved who are actually a party to this issue. In other words, what you’re looking at here is a very closely-held corporation in both of these examples, and these closely-held corporations are closely held by families with very deep Christian convictions. Hobby Lobby is an interstate company with thousands of employees. Conestoga Wood Specialties has just under 1,000 employees, but the same principle pertains to both. In the court’s ruling today, the religious liberties of those corporations cannot be separated from the Christian convictions of their owning families.
And it’s also important to note that these companies—that is to say, these families—have made their Christian convictions evident in other aspects of their corporate life. Hobby Lobby closes on Sunday. Similarly, Conestoga Wood Specialties prioritizes its corporate calendar also to recognize Christian conviction. Other policies also are brought into alignment with their Christian convictions. Hobby Lobby advertises using references to the Christian gospel and Hobby Lobby is also well-known for paying more than twice the minimum wage in its home state of Oklahoma. In the case of Hobby Lobby, the family involved is the Green family of Oklahoma, headed by David and Barbara Green, who began the business in their own home. In their own home was also where Norman and Elizabeth Hahn began what became known as Conestoga Wood Specialties. These are family businesses that have grown large—one larger than the other, but the same principle applies to both. Both companies sued the Obama Administration under the contraception mandate authorized under the Affordable Care Act; otherwise known as ObamaCare. That mandate required them to provide and to pay for birth-control coverage that would have included those four specific forms of birth control that may cause early abortions. Neither company—it’s important to note—sought a complete escape from the contraception mandate.
As the majority opinion in the case made clear today, one of the biggest questions hanging over the entire decision and the entire controversy is this: why would the Obama Administration be so deliberate in attempting to violate the religious convictions of Americans on the contraception and birth-control issue? That’s a huge question for this reason: the administration, from the very beginning, could’ve accomplished what it wants to accomplish without this violation of Christian conviction, but it has chosen steadfastly and repeatedly not to do so. And in this case, it has now been rejected by the court and rebuked by the court for failing to recognize the importance of religious liberty. That raises this question over and over again: why does this administration persist in violating religious liberty when it is not even necessary for it to accomplish its own goals?
Today’s decision is also, we need to note, a further repudiation of the heavy-handed and blatantly unconstitutional overreach of President Barack Obama and his administration. The president could’ve covered contraception and birth-control under any number of other means, which would not have specifically targeted religious liberty. Instead, he and his administration appeared to take the route most likely to trample upon religious liberty and to offend Christian conscience. Today’s decision comes on the heels of other decisions, including several 9 to 0 decisions, in which the president’s arguments have been repudiated by the same court. Furthermore, the president faces a looming threat of even greater rebukes yet to come. His administration continues to violate the convictions of Christian nonprofit organizations and ministries on the same grounds. He faces lawsuits coming from a massive collection of religious nonprofit ministries, ranging from evangelical colleges and universities to the Little Sisters of the Poor, a Roman Catholic charity. Today’s decision makes the victory of those groups all the more likely.
In looking at both the majority opinion and the dissenting opinions handed down just hours ago, this much is clear. First, the court’s decision affirms the central importance of RFRA, that is, the Religious Freedom Restoration Act of 1993. Responding to that decision back in 1990, in 1993, Congress passed RFRA, demanding that any law or policy of the federal government that would violate a citizen’s religious convictions, must pass two very key tests. In the first place, it must meet a compelling state interest and had to do so in the second case by the least restrictive means of furthering that compelling state interest. As Justice Alito noted, Hobby Lobby and Conestoga Wood did not protest against the compelling state interest of the contraception coverage; only against the four specific birth-control products that were mandated. Justice Alito and the majority rightly concluded that the Obama Administration had utterly failed the second test. There were any number of alternatives the administration could’ve taken that would have accomplished its goals without burdening Christian conscience. What makes this especially important is the fact that RFRA, back in 1993, passed Congress without a single dissenting vote in the House of Representatives and by 97 votes for the act in the Senate. RFRA had massive support within Congress. Many people no longer remember that the co-sponsors of the legislation in the Senate were Senators Orrin Hatch and Edward Kennedy. Rarely did you see them as co-sponsors of any legislation, much less one of this importance. RFRA also had massive support within Congress and the public opinion at large, and yet, just 21 years later, it seems that many Americans would gladly violate the religious liberties of some in order to advance liberal social policies for others. Today’s decision underlines the importance of RFRA, but it also demonstrates the massive task of defending religious liberty that lies ahead.
Second Justice Alito reminded all Americans that the designation of any corporation, whether commercial or non-commercial, is vital to individual liberty. This is a very important point. So many Americans have been debating issues, such as the Citizens United case, in which you have many people on both the right and the left, but mostly on the left, saying that it’s insane that a corporation is legally recognized as a person. But what that misses is the very fact that, from a corporate law perspective, that’s the only reason a corporation takes any legal existence anyway is so that it can be legally defined a person, such that we recognize having certain rights, but also certain responsibilities. You can only sue a corporation because in court the corporation appears as a legal person. Many Americans seem to be deeply confused about this, but Justice Alito reminds us all—and here I’m quoting from his decision:
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 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.
So American corporate law protects the rights and liberties of the people associated with the companies known as Hobby Lobby and Conestoga Wood Specialties, but also for the corporations known as Planned Parenthood and Greenpeace. The same rules apply to all. The court ruled today that there is no basic distinction between closely-held for-profit and then nonprofit corporations in this regard. As Justice Alito observed, the dissenting justices did not even really make any clear argument in defense of a distinction. The Hobby Lobby decision applies only to closely-held private corporations, not to publicly-traded corporations. The Green and Hahn families, the court ruled, did not surrender their religious liberties by establishing a for-profit corporation. The same is true for your local kosher deli. This is an important win for the religious liberties of all American citizens.
Third, the lead dissent from Justice Ruth Bader Ginsburg reveals a massive ideological divide on the Court that mirrors the divide within our country at large. Her dissent is very interesting; indeed, it’s even alarming. She leads with concerns about the needs for contraception and birth-control for women and proceeds to dismiss the Christian convictions of the Green and Hahn families as “too attenuated to rank as substantial.” It’s very interesting to note that many people in the media are immediately drawing attention to the fact that the three women justices on the court are all in the minority here. In other words, they all voted against Hobby Lobby and Conestoga Woods. There are many people trying to say this is thus a gender issue. Echoing this almost immediately, the public statement that came out of the White House said virtually the same thing: this is a huge blow to women. But what that misses is the profound point that the administration could’ve accomplished everything it wants to accomplish on behalf of women, making its own arguments according to its own worldview, without violating the religious consciences of these corporations and their families. But going back to the dissenting opinion handed down by Ruth Bader Ginsburg, one of the things we need to note is that she claims that the religious convictions of the Hahn and Green families, in terms of the connection to the mandate, are “too attenuated to rank as substantial.” That’s an amazing, indeed, condescending statement. That is a very unveiled rejection of religious liberty by arguing that the Christian convictions of these two families, and thus of their corporations, can be absolutely disregarded by the court because in the court’s opinion they’re “too attenuated to rank as substantial.” But what Justice Ginsburg’s dissent completely ignored is the fact that the Obama Administration’s policy requires the Green and Hahn families, and any in a similar predicament, to facilitate what they deeply believed to be morally wrong when the government could’ve accomplished the same result without any such requirement. This led to what I believe in Justice Alito’s majority opinion may be one of the most enduring and important paragraphs. Responding to the lead dissent by Justice Ginsburg, Justice Alito wrote:
The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principle dissent in effect tell the plaintiffs that their beliefs are flawed.
That is a stunningly important paragraph for several reasons. First of all, here you have Justice Alito rightly recognizing that what you have in the dissenting opinion is a complete dismissal of the Christian convictions of these two families as being just irrelevant, not even important enough to be considered by the court.
The second issue made very clear in this regard by Justice Alito is this: when you have the government requiring someone to do something, which will facilitate another doing something the first person considers to be immoral—that is a violation of the first person’s religious liberty. And that’s exactly what the majority opinion recognizes in the case of Conestoga Wood and Hobby Lobby. What we had today was a vindication of the conscience of those who say, “I can’t participate in that without violating my conscience.” Something we need to recognize is that if you have any familiarity at all with the Second World War, one of the arguments used against the Germans who were being tried for war crimes is that they should have stood on conviction by not facilitating the immoral acts of others. Here you have the minority on the court, the dissenting opinions, saying that they would’ve effectively sided with those who said, “Those religious convictions aren’t important if I’m not involved in immoral activity myself.” That’s a very dangerous argument and one that isn’t even apparently recognized by the dissenting justices on this court. Justice Alito’s statement is a stunning rebuke and a much-needed clarification. He defended religious liberty and revealed the deep divide on the court and in the nation, a divide in which some Americans are willing to trample religious liberty under the boot of sexual liberty and to dismiss all arguments to the contrary as, to use Justice Ginsburg’s words, “too attenuated to rank as substantial.”
In the other major opinion handed down today, that’s the case known as Harris v. Quinn, the same voting breakdown on the court ruled that states could not require—state law could not require employees of companies to pay labor union fees if they are not members of the labor union. Already there are those who are suggesting this is a massive blow to the unions, but it’s another realignment, you could simply see, in terms of American law and culture, in terms of the balance between collective and individual liberties. And it’s one that is going to be debated, you can be sure, for many months and years to come.
Meanwhile, back to the big issue today, that most looked for of all the cases before the court this term, the Hobby Lobby case. We need to recognize, as I began, that some Supreme Court decisions are considered landmarks even on the very day they’re handed down. Today’s Hobby Lobby decision ranks among those. Just consider the fact that had the court ruled otherwise, religious liberty in America would’ve taken a very direct hit from which it may well have never recovered. The public debate revealed all over again the fact that we are in a great and enduring battle for religious liberty, for the sanctity of human life, and for an entire range of concerns that are central to biblical conviction. Today’s decision does not settle those issues, but it does represent a much-needed defense of our nation’s cherished first freedom. For that, at the very least, we should be very thankful.
Thanks for listening to this very special edition of The Briefing, timed for June 30, 2014, the last day of the Supreme Court’s term for this year. Remember that right now, as we enter the month of July, we’re in that one month when there are no daily editions of The Briefing. We’ll come back on the 4th of August with the daily edition and the new season of The Briefing. For more information, go to my website at albertmohler.com. Let me bring your attention to a major essay on the Hobby Lobby decision that I posted earlier today. Again, you’ll find that at albertmohler.com. For information on The Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, just go to boycecollege.com. Remember you can follow me on Twitter by going to twitter.com/albertmohler. I wish for each of you very happy summer weeks ahead, and I’ll meet you on the 4th of August for The Briefing.
