When the Chief Justice Rehnquist-led Supreme Court of 2000 handed down their history-changing ruling in Bush v. Gore, stopping a recount and giving Florida and the nation to George W. Bush, the majority opinion went to great pains to say “This is a one-time-only decision referencing a narrow set of circumstances, and in no way is anyone to use this as precedent for any other case.”
OK, that’s not an exact quote, but that’s basically what it said.
The Justices (or maybe the nation) got lucky in that case. Whether it is because of the relative rarity of a situation such as a too-close-to-call contest for electoral votes, or it is the judicial system’s collective embarrassment over the pretzel logic used in the decision, Bush v. Gore is just not a regular citation in contemporary legal advocacy.
But perhaps the Rehnquist Court’s judicial jujitsu was in Justice Samuel Alito’s mind when he penned his decision in Burwell v. Hobby Lobby Stores [PDF] — or maybe it was a useful sub rosa argument to get Justice Anthony Kennedy to sign on to the 5-4 decision — because Monday’s ruling tries to play the same “just this once” card ... at least in writing.
The ruling in Burwell v. Hobby Lobby says it only applies to “closely held” corporations (ones where 51 percent of the company is in the hands of five or fewer owners) that, as in the case of the giant arts-and-crafts chain, object to specific kinds of contraception they viewed (wrongly, mind you) as abortifacients. But even if Alito wrote that caveat with a straight face, it took all of 24 hours for the whole legal fiction to unravel.
In 2014 America, the court, in all its wisdom, did not have to imagine a scenario where Hobby Lobby might be used as precedent; all it had to do was look at its docket. And that’s exactly what they did Tuesday when the Supreme Court vacated two Appeals Court decisions, and ordered the reopening of another Appellate case. In each of the three, a court had ruled that companies could not object on religious grounds to providing contraceptive or “preventive services” coverage. But now the Supremes have remanded those cases back to the lower courts and instructed them to reexamine their rulings under the majority decision in Hobby Lobby.
The High Court also declined to review three petitions brought by the government in cases where the courts had ruled in favor of a company’s attempt to use a religious exemption to deny contraceptive coverage.
Even under the court’s narrow language, no one should confuse “closely held” with “small.” Computer giant Dell is a closely held corporation — it employs more than 111,000 — so is agribusiness behemoth Cargill with its 140,000 workers. Hobby Lobby itself has 23,000 employees. And even if closely held companies are not individually large employers, the collective number of people now faced with the immediate consequences of this week’s decision stands to be large — there are reportedly 48 cases winding through the legal system where closely held corporations are seeking a religious exemption from the contraceptives mandate in the Affordable Care Act.
But the broader precedent is what Justice Ruth Bader Ginsburg called a “minefield.”
Expanding protections granted by the Religious Freedom Restoration Act (RFRA) from individuals to the legal fiction of corporate “persons” opens the door to both wider objections to reproductive health services, and to other forms of discrimination justified by “sincerely held” (to use Alito’s language) religious beliefs.
Alito’s assurances on “narrowness” will not last long, according to Kevin Russell, a partner at Goldstein & Russell, a law firm that represents cases before the Supreme Court. Speaking to Al Jazeera, Russell said Hobby Lobby will “arise again when someone sues over gender or sexual orientation discrimination.”
As if to signal that is imminent, a group of “faith leaders” has written the White House to ask for just such SCOTUS-sanctioned RFRA relief from antidiscrimination laws. And this is not just the consistently anti-Obama religious right asking for this exemption:
Tuesday's letter is different: It comes from a group of faith leaders who are generally friendly to the administration, many of whom have closely advised the White House on issues like immigration reform. The letter was organized by Michael Wear, who worked in the Obama White House and directed faith outreach for the president's 2012 campaign. Signers include two members of Catholics for Obama and three former members of the President’s Advisory Council on Faith-Based and Neighborhood Partnerships.
The first decision on the horizon is the president’s announced, but not yet officially drafted, executive order preventing federal contractors from discriminating on the basis of sexual orientation. There is no word from the White House on whether the Hobby Lobby decision will influence the language of the executive order, but this is, it should be noted, the administration that had already opened the door to faith exemptions with its ACA carve-outs for religious nonprofits and church-affiliated groups.
And no matter how the White House divvies up its slice of the workforce, courts are primed to weigh in. To document the fast track between “narrow” and precedent, look elsewhere on these pages at the example set by Lawrence v. Texas.
In 2003, the Supreme Court ruled that a Texas sodomy law was unconstitutional, and by doing so, essentially invalidated anti-sodomy laws in 13 other states. The majority opinion held that this case was meant only as a review of a 1986 ruling that had sided with sodomy prohibitions, but in his dissent, Justice Antonin Scalia wrote that Lawrence could open the door for invalidating other laws, such as bans on masturbation, adultery, and most pointedly, same-sex marriage.
And in this case, Scalia proved prescient:
When the Supreme Court ruled in Lawrence v. Texas that the state’s anti-sodomy law was unconstitutional, the justices took pains to say that their decision wasn’t an implicit endorsement of same-sex marriage. Just months later, the Massachusetts Supreme Court struck down that state's same-sex marriage ban, citing in part Lawrence v. Texas. And last year, the case was mentioned no fewer than eight times by the Supreme Court in its majority opinion [PDF] striking down key parts of the Defense of Marriage Act (DOMA).
Then, in its DOMA ruling, the Supreme Court said that DOMA wouldn’t specifically apply to states’ bans on gay marriage. But in the past year, several federal and state judges have used that decision to strike down statewide bans.
It is a collection of dominoes of which the court was not likely ignorant. Though Justice Kennedy went out of his way to argue that the religious exemption on contraception would not be extended to other potentially objectionable items like blood transfusions or medications derived from animal byproducts (because, it has been said, only half in jest, these things might be needed by men), these sorts of “trust us” minimizations hold about as much weight as they do legal acumen.
Whether by accident or intent, the Hobby Lobby ruling has set the wheels in motion. Religious freedom, as defined in RFRA, has been extended to a class of corporate entities. The case itself may look narrow, but the implications could very well confirm Ginsburg’s suspicions: Hobby lobby is “a decision of startling breadth.”