The waiting is over. On the last day of the term the Supreme Court of the United States (SCOTUS) released its opinion in Burwell v. Hobby Lobby, holding by a 5-4 decision (conservatives vs. liberals) that (certain?) privately held companies do not have to supply forms of contraception under the Affordable Care Act (“Obamacare”) which violate the owner(s)’s religious beliefs. Despite all of the hype surrounding the case, including many American Catholics holding it up as a grand showdown over religious liberty, I agree with Eric Posner’s pre-decision assessment in Slate that the case is pretty much a bore. (Posner has some further post-decision thoughts here.)
I am not surprised by the decision, although I was expecting Hobby Lobby to prevail 6-3. Some folks I know who followed the case assiduously predicted a 7-2 or 8-1 victory. I never understood why. SCOTUS is a political animal and its decisions are ideologically driven; “legal reasoning” is just the art of fig leafing. Still, I understand the frequent temptation of lawyers and political junkies to suspend disbelief in order to make the Court more compelling, legally grounded, and grand than it really is. I do the same thing all the time when I watch professional wrestling. Yes, I know you can’t punch another human being in the skull ten times in a row without giving them brain damage and you a broken hand, but I am not going to let that little detail get between me and bloody brawl featuring Bruiser Brody and Abdullah the Butcher. SCOTUS watchers, and the bloated legion of legal academics dedicated to writing torturously long law-review articles on SCOTUS decisions and constitutional jurisprudence, don’t like looking behind the curtain. They still want to believe that even if the fix is probably in, at some moment along the way a justice or two will opt to “shoot” (pro-wrestling jargon for breaking the script and turning the match real) and follow the law—or the most plausible reading of the law—rather than their private policy preferences. When something “shootish” does occur at the Court, such as Justice Roberts’s somewhat shocking (though on a certain level predictable) Affordable Care Act decision from two terms ago, it’s very, very exciting! (Well, for some people it is.)
Anyway, there are plenty of Catholics out there gushing over today’s “victory” for “religious liberty.” There are also others, a bit more realistic in their take, who note, quite rightly, that a 5-4 decision means that Hobby Lobby is ripe for overturning if/when the ideological composition of SCOTUS changes. Assuming a Democrat or moderate Republican makes their way into the White House for two terms starting in 2016, it is impossible to imagine Justices Kennedy and Scalia still being on the Court. Without trying to sound morbid, it would, statistically speaking, be surprising if they were still alive. So whatever (questionable) comfort Hobby Lobby provides today won’t be here to console folks a decade from now.
On the other hand, some observers—mostly liberals—are predicting that Hobby Lobby opens the doors to all sorts of religion-based challenges to ostensibly neutral statutes, but that’s far from certain. Right now the safest read is that the decision provides a narrow exception for a narrow class of businesses to avoid a rather miniscule part of Obamacare. This is not to say that such an exception is wholly unimportant. No Catholic business, and certainly no Church-run enterprise, ought to supply manifestly immoral “health care” to anybody. That’s a fact rooted in truth. But there is nothing about today’s decision which offers any hope that the Church, or American Christianity writ large, is on the brink of stemming the tide of liberalism. The United States did not wake up from its secular slumber this morning in order to bask in the light of Christ. Christian principles remain passé and where there is a clear conflict between the Church and the Zeitgeist, the former should, by contemporary lights, capitulate to the latter. Who is SCOTUS to judge otherwise?