Opinion

Outrage over Hobby Lobby decision is misguided

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Opinion,Op-Eds,Supreme Court,Hillary Clinton,2016 Elections,War on Women,Contraception,Hobby Lobby

Hillary Clinton, really? The former secretary of state called the Supreme Court's Hobby Lobby ruling, which said a closely held corporation can be exempted from paying for contraceptives that violate the owners' religious beliefs, a "really bad slippery slope."

I call that a really bad interpretation of a decision that was narrow, practical and appropriate.

Elsewhere, women and men have decried the decision as pro-corporation and anti-woman. A typical Facebook post: "So, as a corporation, Hobby Lobby has the rights of a person, but as a woman, I do not?!?"

I sympathize with those who feel so passionately that the Supreme Court got it wrong. To believe your country and your government let you down is a horrible feeling of disenfranchisement. But righteous indignation toward Hobby Lobby and the Supreme Court is misdirected.

Instead, get mad at the media, the politicians and Hillary Clinton. They have over-read and over-politicized this case to the point of absurdity. Be angry at the people who let you believe that a narrow ruling about religious exemptions, done in a way that ensures women still have access to contraception, means the Supreme Court doesn't care about women.

The ruling does not allow employers to harass, belittle or deny their employees anything. The ruling just shifts the payment for four of 20 kinds of contraceptives to a third party.

Hobby Lobby is not and never was about an evil corporation trying to deny women access to health care, contraceptives or even abortions. The owners are not blocking women from doing whatever they feel they should, as per their rights. The owners did not want to directly pay for four specific kinds of contraception.

As Justice Anthony Kennedy took the time to point out in his concurrence, this entire problem would go away if the government would chip in or require insurance companies to cover those four types, as they have already done for churches and other religious organizations.

The government has a history of helping pay for religious accommodations, ranging from unemployment benefits to military exemptions, to yes, contraception. If the government would just do that here, as the Court suggested, everybody wins. Not a single woman will go a single day without the same access to every kind of contraception available to employees of corporations not owned by Christians.

The Court tried to make this clear, noting the assumption that women having access to contraception is a compelling government interest, writing in an effort to protect that interest, and repeatedly affirming that this narrow, limited exemption would not and could not be broadened or used in any way to allow acts of discrimination to be hidden underneath the veil of religious practice.

In fact, the only door left open for further harm was the vigorous dissent, which claimed that despite the Court's assertions, the decision could and would be used to discriminate. Had the dissenting justices only agreed that it was narrow, and that strict scrutiny was a fair test, the discussion would be over and lower courts would have no choice but to interpret it accordingly.

For those who feel you lost Hobby Lobby, there is good news and bad news. The good news is that you did not really lose. The bad news is that you were made to think you did so someone could score political points.

I feel terrible that you feel like the Court took something important away from you. It is worse that you feel this way when the Court really didn't, when the Court said that you should keep all of your entitlements but that the government should chip in a little bit more.

The reaction to this decision speaks volumes about the state of our country's polarized political process, where tolerance does not go both ways and a discussion of funding is reframed as Roe v. Wade 2.0.

The lesson from Hobby Lobby is broader than the decision, but it has nothing to do with contraception. The take-away is that if we want people to respect the Court and what it does, we need to be honest about the issues.

Not everything should be political, because all that does is alienate people who would otherwise understand that a free country is one where everybody has to put up with a little give and take — women who need contraception, and corporations that want to make sure the way they structure their payments is in accordance with their owners' religious beliefs. The issue and the ruling are both reasonable and understandable.

Not everything deserves our ire, and the moderate position the majority took in Hobby Lobby certainly doesn't. But in this case, Hillary Clinton does.

Mark Goldfeder is senior lecturer at Emory University School of Law and a senior fellow at the Center for the Study of Law and Religion.

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