So Katie Couric interviewed Justice Ruth Bader Ginsburg recently, and the Justice’s statements about the Hobby Lobby case made news:
The decision that an employer could refuse to cover contraceptives meant that women would have to take care of that for themselves, or the men who care. Contraceptive protection is something that every woman must have access to to control her own destiny. I certainly respect the belief of the Hobby Lobby owners. On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don’t share that belief. I have never seen the free exercise of religion clause interpreted in such a way.
The Hobby Lobby case was not decided on the strength of the Free Exercise Clause of the First Amendment. The majority did not decide that the Hobby Lobby owners had a “constitutional right” to do anything. Read the opinion here (.pdf). The Court noted that the Religious Freedom Restoration Act was a Congressional response to Supreme Court decisions that had held that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” What’s more, Justice Ginsburg (or at least her law clerk) appeared to understand this, as Justice Ginsburg’s opinion states in the second paragraph:
The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. See infra, at 6-8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §2000bb et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith-in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
I guess the lesson here is, when speaking on television about a decision that you barely understand because it was written entirely by your law clerk, don’t.
Thanks to Ben S.
P.S. I should add: since we don’t have the entire raw footage of the interview, it’s remotely possible that this is a hack job by editors who took a portion of a long answer and condensed it misleadingly. But it’s not unusual for so-called experts who are ideologues to get this wrong; why, Dahlia Lithwick and Sonja West said in Slate that the HHS contraceptive mandate had been declared “unconstitutional” by the majority Justices. Again: these are the “experts.”