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Samuel Alito, Defender of the Faith

Minefields and religious freedom in the American Republic

By Nelson L. Barrette

Last month’s Supreme Court decision in the Hobby Lobby case has stirred outrage because of its favoring of narrow religious interests over women’s reproductive health. Handed down days after the Court voided Massachusetts’s buffer-zone statute, the case demonstrates that the health concerns of half the American people do not receive adequate legal protection. Meanwhile, Justice Ruth Bader Ginsburg’s Hobby Lobby dissent has become a sensation for its cool dispatching of the Court's majority opinion, written by Justice Samuel Alito.

While much of the anger has focused on the verdict’s immediate implications for women’s health, Ginsburg's dissent shows that just as much ridicule should accompany the Court's interpretation of the Religious Freedom Restoration Act. As Ginsburg writes, the Court’s expansive reading of the law–that for-profit corporations can use a statute written with narrow intentions to wriggle out of civil regulations–has led the Supremes to “[venture] into a minefield.” The exact contours of that minefield only support her reasoning.

Holding people of different religious beliefs to different sets of civil law has a long history across various polities. The Ottoman Empire with its millet system provides the most famous example. Under the Ottomans, the Sublime Porte recognized the temporal and spiritual power of non-Muslim officials, such as the Greek Orthodox Patriarch, who administered independent systems of civil law for their own communities. This arrangement granted religious minorities significant autonomy, but existed alongside official discrimination and inequality before the law.

Such accommodations extended into modern Western states that we could hardly caricature as part of the “unenlightened” Orient. The 17th century British state, for example, recognized a Presbyterian Church of Scotland separate from the established Church of England. But Anglicanism reigned supreme elsewhere, with the British monarch as Defender of the Faith. 

Opposition to this state policing of personal conscience was, of course, a key motivator of Founding Fathers like Thomas Jefferson and James Madison. The First Amendment was intended to prohibit the government support for religion which was the norm across the Atlantic–from Shannon on Ireland's west coast to the shores of the Bosporus at the edge of Europe.

What does this brief history of religion and government have to do with Hobby Lobby? As Ginsburg put it, “approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’” The Supreme Court has now set the precedent that Christians–even ones who have elected to participate in the national economy as owners of for-profit corporations–can opt out of providing their employees with contraception. The same, however, may not hold true for Jehovah's Witnesses, Scientologists, Muslims, Jews, Hindus, and Christian Scientists who object to other heath care mandates, a point Justice Ginsburg contemplates. Such favoritism might leave Jefferson and Madison turning in their graves. 

What's more, these possible exceptions are more than academic. One of the cases cited by the majority in Hobby Lobby is Brauenfeld v. Brown, in which the Supreme Court ruled that Sunday closing laws did not impermissibly burden the religious rights of Orthodox Jews. Perhaps the current majority would have come to a different conclusion in Brauenfeld. But with the decision in Hobby Lobby, they implied that business owners who object to providing their employees contraception are more favored under the law than Jews who wish to observe a different day of rest. 

The idea that some religious people with certain religious beliefs can opt out of commercial regulations cannot be squared with the First Amendment. To draw from Ginsburg once more, the regulations at issue in Hobby Lobbyarguably unlike those in Brauenfelddo not inhibit what Hobby Lobby's owners “may believe...or do.” But the Supreme Court has decided that some beliefs deserve special exemptions, even in the civil sphere. Under the Ottomans, it was your millet that determined what laws applied. In 18th century England, it was the political connections of your church. Nothing so dramatic will to occur in 21st century America. Nonetheless, under the Roberts court, the extent of your religious liberty may depend on the sympathy of the justices who hear your case.

So, until Ginsburg's dissent becomes law, All Hail Samuel Alito, Defender of the Faith. 

Nelson L. Barrette ’17, a Crimson editorial writer, lives in Winthrop House. His column will appear every two weeks this summer. 

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