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Freedom to Suffer 

Hobby Lobby demonstrates the shortcomings of our all-too-common 5-4 decisions, especially when the five are all men

The First Amendment reads: "Congress shall make no law respecting the establishment of religion nor prohibiting the free exercise thereof." That created a systemic tension that has required deft balancing from our judicial system. Over the years, the Supreme Court has wobbled its way across the political high wire — from time to time shifting weight towards the "establishment" clause, and then back to "freedom of religion" clause.

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The Warren Court gave slightly more weight to the establishment clause proscription — not allowing prayer in schools, for instance. I say "slightly" because in 1963 came the Sherbert v. Verner case. Adell Sherbert, a Seventh-day Adventist, had been denied unemployment benefits because her religion wouldn't allow her to work on Saturday. The Warren Court, by a 7-2 vote, determined that the government, in denying her benefits, had failed to demonstrate a "compelling state interest" necessary to limit her religious freedom.

Later, in 1993, Congress passed the Religious Freedom Restoration Act. The circumstances: Oregon had denied a native American tribe the use of peyote, which traditionally had been part of a religious ceremony. The courts upheld Oregon and the resultant public outcry led to the bill, which easily passed. Even Bill "I Feel Your Pain" Clinton supported it. The Supreme Court subsequently ruled that states weren't subject to the RFRA, but that it could extend to federal lands and policies — the same issues that came into play during the case affirming the legality of the Affordable Care Act.

The RFRA was a turning point, as it reestablished the compelling state interest test, raising the prospects for legal weight shifting more dramatically from concern about the establishment clause to the freedom of religion clause. The recent Hobby Lobby decision builds out of the RFRA, as does Justice Samuel Alito's majority opinion. Fair enough.

In its editorial entitled "Disingenuous," The Economist argues that the Court's application of the RFRA via the Sherbert decision is so much sophistry; specifically, that Alito, as Justice Ruth Bader Ginsberg charges, intentionally understated the widespread effects of his decision, thus misapplying the compelling state interest test. It's easy to see through to his real intention — that is, to piggy-back related cases (which already are piling up) on the infamous Citizens United ruling to allow ever-larger, for-profit corporations, now defined as "persons," to escape the Affordable Care Act through appeals to religious freedom, one erosive case at a time.

As recently discussed in this space, Chief Justice Earl Warren, in Brown v. Board of Education, wanted a unanimous opinion to give maximum moral suasion to what he knew would be a highly contentious decision. To get this unanimous vote, he ceded some ground to the fence-sitters, notably in his vague order to states to integrate "with all deliberate speed." Virginia used this vague expression to extend segregation for another 15 years or so. Nor did Warren ever define "integration," which led to the "de facto segregation" controversies, which metastasized into the school busing fights.

In Hobby Lobby, Chief Justice John Roberts failed to improve on Warren's vagueness, yet, unlike Warren, he gets nothing in return — just another all-too-partisan 5-4 vote on a far-reaching case. Alito's majority opinion fails to clarify and define. "Closely held corporations?" What is the threshold there? "Sincere belief?" What if that extends to beliefs that are unsupported by science and not factually valid?

Alito's opinion is a litigant's dream come true.

More troubling is Alito's cavalier and dismissive attitude towards women. How else to explain his seeming ignorance regarding uniquely female health care needs? One Economist reader's response to Alito's treatment of contraception sums what's woefully missing in his opinion — any sensitivity to and understanding of gender fairness:

Contraception is health care. OCOS, cancer, endometriosis, excessive bleeding (from which I suffer and for which the only treatment other than hysterectomy for me was an IUD), irregular periods... all are treated with hormones delivered via contraception and/or the devices that [Hobby Lobby] objected to... Men get their hormone imbalances addressed without question. Low on testosterone? No problem. Can't have an erection? You can get drugs or get a device all paid by insurance. ... In both women and men, our reproductive systems are a large part our general health. By separating out reproductive health issues ONLY FOR WOMEN, we are saying that men's reproductive health is inviolate and women's... meh. Suffer.

Her point? Alito's opinion suggests that neither he nor his four aging male colleagues have a clue about women and their needs. Would any of the five have thought to ask any of the three women justices for their perspective? What's worse, do they even care? Ginsberg's dissent pretty much answers these questions.

Earl Warren, if confronted with the same case, would, I believe, have made it clear that his vote for Hobby Lobby depended on convincing at least one of the three women justices to vote with the majority. ♦

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