By Paul Horwitz

TUSCALOOSA, Ala. — THE United States Constitution speaks of the Supreme Court’s jurisdiction over “cases” and “controversies.” But when social controversies do come before the court, its powers are limited. In Burwell v. Hobby Lobby Stores, which concerned the dispute over the Affordable Care Act’s contraceptive mandate, the court may have decided the case. The larger controversy, however, won’t be settled so easily.

By a 5-to-4 vote, the court on Monday held that the mandate, which requires employers to provide health insurance coverage for contraception, could not be applied to closely held for-profit corporations with religious objections to some forms of contraception. Religious groups described the mandate as part of a war on religious freedom. Supporters of the mandate countered that a victory for the plaintiffs would allow large corporations, under the cover of religious freedom, not just to impede women’s exercise of their reproductive rights but also to defy civil rights statutes with impunity.

Amid this heated talk, it was easy to lose sight of the fact that this was a statutory case, not a case decided under the First Amendment’s protection of freedom of religion. The statute in question, the Religious Freedom Restoration Act, states that the government “shall not substantially burden” the exercise of religion without satisfying a demanding legal test.

It is worth noting that the act was championed by President Bill Clinton and passed in 1993, with near unanimity, by a Democrat-controlled Congress. The act was drafted in response to a controversial 1990 Supreme Court decision that made it easier — far too easy, according to critics of all political stripes — for the government to burden the exercise of religion.

The decision in Hobby Lobby was no shock to anyone familiar with the heavy weight that the Religious Freedom Restoration Act places on religious accommodation. The fate of the case was sealed 21 years ago — not by a slim majority of the court, but by virtually every member of Congress. In a dissenting opinion on Monday, Justice Ruth Bader Ginsburg argued that the court’s ruling in Hobby Lobby was one of “startling breadth,” but the statute itself is deliberately broad.

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“A country that cannot even agree on the idea of religious accommodation, let alone on what terms, is unlikely to agree on what to do next.”

Why don’t we agree, I think is where the bottleneck can be found. The strident religious right has been successful in claiming that not being able to enforce their way of life with all of those they come into contact with is, in itself, discrimination against their right to practice their religion and, now by extension, run a business. 

While the fix for the Hobby Lobby case is an easy one, implementing universal healthcare and getting employers out of employees’ health needs and medical histories, it doesn’t solve this fundamental question: do the rights of employees, by their sheer numbers and by virtue of the value they are owed through their work product, not trump the needs, however valid, of an employer? Once that question is settled, then, we go back to the other issue that stands in our way in many discussions: are corporations people?

If the answer to the first question is that the rights of the many indeed trump the rights of the few, then it follows that when we ask whether corporations are people, the answer must be no.

So, it isn’t that the country can’t agree on the idea of religious accommodation, but that the definition of accommodation is being changed by those who have the money with which to do it. That is a huge distinction and one of many reasons why Citizens United and McCutcheon must be undone.

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To read the rest of this op-ed and my comment, click here.

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