Hobby Lobby or the Empire of Religious Freedom

The recent ruling of the U.S. Supreme Court on the Burwell v. Hobby Lobby case has just granted an employee exemption from fees for medical treatments that are in contravention of his religious convictions, although this a breach of the Affordable Care Act, otherwise known as “Obamacare.” Hobby Lobby is a chain of stores whose chief executive David Green gives financial support to Christian right-wing nonprofit organizations. This latest ruling particularly targets the infamous morning-after pill, which Green esteems to be tantamount to abortion. In fact, it is more than just a question of religious freedom; other factors that are being called into question include the right to a private life and the right to so-called bodily integrity. This ruling represents an application of the Religious Freedom Restoration Act, and through intervention in this ruling, the majority ruling in the Supreme Court has granted religious freedom to companies concerning a minority of shareholders. The text of the law forbids the government from hindering an individual’s practice of religious freedom, even if this means applying a more general law.

It is certainly not the last in a long list of human rights granted to companies by the judicial branch: Such companies already benefit from the right to freedom of expression, especially of a political nature. Other than the absurd fact of granting personal rights to companies, the ruling is also likely to prove detrimental to women and religious minorities.

The U.S. Supreme Court has just ventured into a minefield, which is exactly how Justice Ginsburg put it when she signed on one of four dissents. Indeed, this outcome is of wider relevance, concerning not only the Christian community and their religion. Many other religions contain precepts forbidding medical procedures. As a result, it is possible that a company that practices Scientology might obtain an exemption from covering its employees’ antidepressants. It is even possible that a business whose CEO is a Jehovah’s Witness might refuse to cover medical costs for blood transfusions. The end result is that this ruling will force job seekers to take the religion of a company into account, and the treatments that the company may or may not cover — on religious grounds. Employees may even miss out on treatments at times when the unemployment rate is high, for example. The effect of all this will be to enable employers to indirectly discriminate against job seekers on the basis of these exemptions, by rendering their jobs less desirable for those who do not share the religious beliefs of the employer.

Moreover, these exemptions will consequently be very easy to obtain because the five judges who ruled in the majority have placed only a very light burden of evidence on the claimant. Instead, it is the government that bears the weight of this burden. The effect of the Restoration of Religious Freedom Act, which plays a role in this ruling, is to impose the doctrine of strict scrutiny on any governmental act that might be in contravention of the right to religious freedom. The government must prove that the attack on a religious doctrine is in the interest of a more urgent objective and that the refusal of an exemption is the decision causing the least harm to the rights of the claimant. On the other hand, the claimant only needs to show that the treatment, from which he wishes to be exempted, is incompatible with his sincerely held religious beliefs, regardless of whether these beliefs are deemed reasonable or not, or the number of people who subscribe to them. Indeed, the court is even said to have refused an argumentation according to which Hobby Lobby would spend less money on paying the charges incurred for not covering the medical costs of contraception than the company would have spent on covering them in the first place, just because the sincerely held religious beliefs of the claimant were sincerely held religious beliefs. The circle couldn’t be more perfect. The doctrine of strict security has proved itself practically immune to attack because of the government’s obligation to find any other possible solution that might prove less harmful to the principle of religious freedom. Thanks to the increasing lack of any form of judicial restraint on the matter of religious freedom, this therefore means that any other right is subordinate to that of strict security, with the direct consequence that any other law that might detract from the principle of religious freedom is rendered inapplicable. The legal experts among us will know that this criterion was already in existence in Canada, but that it has been changed over the course of several subsequent legal decisions. The famous Multani case, involving the possession of kirpan ceremonial swords in schools, exemplifies the point in case. Here, the government was able to choose from a range of possible options, rather than having to choose the option that would prove least harmful to the principle of religious freedom.

If the 20th century was the century of political extremism, the 21st century is that of religious extremism. Religious extremism, as the Burwell case shows, does not only come from the Middle East. Because it seems more familiar to the Western world, the Christian right wing can disguise itself in a veil of legitimacy and stand in contrast to political Islam. But it is, first and foremost, this Christian right of which we should be most mistrustful in fact. Although the Christian right is somewhat less powerful in Canada, it nevertheless forms an important part of the basis of the Conservative Party. The outcome of the Burwell case demonstrates only too well the dangers that this Christian right poses to constitutional democracy, by raising the principle of religious freedom to the status of First Among Equals and by scorning the fundamental principles of the right to a private life; of a woman’s right to freedom; of the right of every citizen to freedom of mind. Moreover, in light of the outcome obtained, the case also demonstrates the huge influence of the Christian right in the United States. That is why, as Canadians, we have a duty to keep a close eye on the degree of influence that the Christian right wing exercises on the Conservative Party in Canada. A similar situation to that created by the justices in the U.S. Supreme Court when they intervened in the Burwell decision must be avoided at all costs because it is a situation that represents a key threat to the principle of community harmony, a fundamental characteristic of any civilized society.