Talk about a light unto nations. It turns out that at the heart of the Supreme Court’s decision in the biggest religious freedom case in America this year — known as Burwell v. Hobby Lobby, which was decided Monday — was an argument laid out only in a brief filed on behalf of Orthodox Jewish groups guided by, among others, the Council of Torah Sages and the Rabbinical Council of America.
The case involved two companies owned by Christians. They were a chain of hobby stores owned by the Green family and a cabinet-making business, Conestoga Wood Specialties, owned by the Hahn family, who are Mennonites.
They were granted their plea to be excused from the Obamacare mandate that they insure their employees for birth control.
Before the case was decided, the Left was warning of a catastrophe if an accommodation were made for the religious families. “These companies are not religious organizations, nor are they affiliated with religious organizations. But the owners say they are victims of an assault on religious liberty because they personally disapprove of certain contraceptives. They are wrong,” the New York Times warned.
Backers of the Obamacare legislation were particularly exercised at the notion that religious rights could inhere in for-profit companies. The government had already exempted religious non-profits. They feared there’d be no end to it if for-profit businesses could shelter under the free-exercise clause of the First Amendment — or the Religious Freedom Restoration Act, which Congress passed to codify certain religious rights.
Several score of so-called “friend of the court” briefs were filed on both sides of the case, but the one that seems to have caught the court’s eye was filed by the Jewish Commission on Law and Public Affairs, known as COLPA. Its key point was that in reference to religious observance, there is no distinction, either in the Supreme Court’s precedents or in Jewish law, between non-profit and for-profit activity.
COLPA warned that the Supreme Court was, in effect, deciding whether federal law “withdraws statutory protection for the observances of religious conscientious Americans” if they “chose to do business through corporate structures that limit their personal financial liability” and “engage in profit-seeking commercial activity.” It used the word “miserly” to describe the Obama administration’s construction of a law designed to broaden the protection of religious freedom.
It called the way the government tried to cut out of religious protection for-profit corporations as “singularly confounding” for “any religiously observant Jewish business-owner.” It described “his or her religious duty” as “totally unaffected by the existence of a corporate entity.” It cited two long-ago cases involving Sunday “Blue Laws,” one involving the Crown Kosher Super Market in Massachusetts and the other a firm called Braunfeld in Pennsylvania.
Both companies, like non-Jewish firms, were denied the freedom to operate their businesses on Sunday, but not because they were for profit-businesses. On the contrary, in both cases, the Supreme Court seemed to take for granted that such enterprises could be acting religiously. “Those two decisions in 1961 established the proposition that you could be a for-profit corporation and still have religious rights,” is the way COLPA’s lawyer, Nathan Lewin, made the point to me Monday.
References to the Crown and Braunfeld cases eddied through the decision of the Supreme Court, which was written by Justice Samuel Alito. Suggestions that the religious freedom statute does not protect for-profit corporations “because their purpose is simply to make money,” Alito wrote, “flies in the face of modern corporate law.” He ruled that the Religious Freedom Restoration Act protected the companies to a degree that the court didn’t even have to get to the First Amendment claims.
All in all, the case was a huge win for the religious camp, but not by a large margin. There were four dissenters, for whom Justice Ruth Bader Ginsburg wrote an opinion that called the decision one of “startling breadth.” She sought to palm off on a noble public the idea that the decision meant “commercial enterprises” could now “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”
On the one hand, a reasonable person could ask, “What’s wrong with that?” On the other hand, it’s a vast overstatement of what the court did, a point made by Justice Anthony Kennedy, the famous centrist, swing-vote on the nine-person bench. What can be said is that the court has just made America a solid notch more hospitable to the most religious Jews, Christians, and Muslims. It did so at a time when all such Americans are having to fight for their rights in court more frequently than the American Founders could have imagined.
Seth Lipsky is editor of The New York Sun. He was a foreign editor and a member of the editorial board of The Wall Street Journal, founding editor of The Forward and editor from 1990 to 2000.
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