Sotomayor Is Right: Hobby Lobby’s Legal Claims Are Not “Indisputably Clear”

In rejecting Hobby Lobby’s request for an emergency injunction, Supreme Court Justice Sonia Sotomayor stated that the Supreme Court may issue an injunction only when “necessary or appropriate in aid of [its] jurisdiction” and “the legal rights at issue are indisputably clear.” Ultimately, she found that the rights at issue in Hobby Lobby’s contraception mandate lawsuit are not “indisputably clear” and sent Hobby Lobby packing.

Conservatives critics, needless to say, have balked. 

Ed Whelan of National Review Online, for example, claims that Sotomayor’s “order puts the Greens in the appalling position of being forced to choose between violating their religious beliefs by providing insurance coverage for abortion-inducing drugs and subjecting their businesses to potentially crippling fines.” Whelan then states, rather flippantly, that the lower courts “messed up” what he deems “elementary points.”

It is indisputably clear that the Greens, as individuals, have rights under the federal Religious Freedom Restoration Act. It is indisputably clear under the Court’s precedents (see, e.g., Thomas v. Review Board (1981)) that, in determining whether a person is engaged in an “exercise of religion” (one element of the RFRA inquiry), judges should limit themselves to determining whether the person is acting from an honest religious conviction. It is indisputably clear that a monetary fine imposed on an exercise of religion “substantially burdens” that exercise of religion. (My essay here develops these and other points under RFRA.) The courts below that ruled against the Greens messed up these elementary points.

The points Whelan dismisses as elementary are, as one might imagine, anything but. First, he claims that it is “indisputably clear” that the Greens have rights under the Religious Freedom Restoration Act. Well, yes. That’s true. The Greens do have such rights. Whelan goes on to claim that Court precedent (Thomas v. Review Board) dictates that courts should limit themselves to determining whether the person claiming rights under RFRA is acting from an honest religious conviction. That’s true, too.

So, let’s assume (as a court must) that the Greens are acting from an honest religious conviction. The question becomes: So what? Asking employers to ensure that coverage is provided for all health needs in a plan earned by their employees might, after decisions made by a patient and doctor, end up subsidizing an activity condemned by the employer’s religion is not a substantial burden on religion. 

Many birth control benefit detractors attempt to read the term “substantial” out of the phrase “substantial burden,” and seem to suggest that any burden on religion at all is a “substantial burden,” and therefore unconstitutional. But the Supreme Court indicated in Wisconsin v. Yoder (a case Whelan references in a separate essay cited in his NRO article) that is not a legally-sound proposition:

Although a determination of what is a “religious” belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.

Others (Whelan included) separate the burdensome activity (“deliberately providing insurance coverage for prescription drugs or devices inconsistent with their faith, in particular abortion-causing drugs and devices” [Hobby Lobby Complaint, ¶¶ 52-53]) from the burden of the sanction (hefty statutorily-imposed fines) and focus on the latter to the exclusion of the former. But case law (again, Wisconsin v. Yoder) suggests that the “substantial” inquiry relates to the law requiring activity charged as violative of religion, and not only to the punishment or sanction for failing to follow the law.  

Thomas v. Review Board tells us that a court must assume that Hobby Lobby is acting from an honest religious conviction, but that doesn’t mean that a court must automatically accept Hobby Lobby’s word as to the substantiality of the burden. As the district court noted in its order denying Hobby Lobby’s request for a preliminary injunction: 

[E]ven assuming, as appears to be the case with plaintiffs, that they object as a matter of religious faith to any act supporting or facilitating abortion, no matter  how indirect, that does not end the issue. RFRA’s provisions do not apply to any burden on religious exercise, but rather to a “substantial” burden on that exercise.

Notably, the “substantialness” of the burden has changed in the last year alone. In February 2012, the Catholic Health Association, for example, sanctioned the original compromise that allows employers to pass the contraception coverage buck to insurance companies. Months later in June, the CHA changed its mind.

One wonders, then, how much of a burden the birth control benefit is. Not much, according to the Tenth Circuit:

The central point of the district court’s substantial-burden analysis was succinctly stated:

[T]he particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff[s’] religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.” 

We agree. As the district court noted, other cases enforcing RFRA have done so to protect a plaintiff’s own participation in (or abstention from) a specific practice required (or condemned) by his religion. We do not think there is a substantial likelihood that this court will extend the reach of RFRA to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship.

(citations omitted.)

Even if the Supreme Court were to ultimately take an opposing view, at a minimum, it is far from “indisputably clear” that Whelan’s view (and the views of the myriad plaintiffs to these lawsuits) is the correct one. And it is this lack of clarity that resulted in Sotomayor rejecting Hobby Lobby’s “Hail Mary” request for a preliminary injunction.

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  • starrsitter

    How far from the “sin” do they need to be in order to be safe?  Should they be allowed to forbid employees from using their earnings to pay for contraception?  Fire anyone who uses “abortion-causing drugs and devices” or anything they think fits that description regardless of, I don’t know, the reality of such things?  Should people like this be able to demand that companies they buy from not provide contraception coverage, lest they facilitate this great sin in even some small way? 


    I feel like they are confusing infringement of their rights with not being able to make others follow their silly superstitions about sex.

  • crowepps

    There are lots of other things that may be considered ‘immoral’ as well.  Should they have the right to forbid their employees using their earnings to buy liquor?  Cigarettes?  Porn?  Gamble in a casino?  Read ‘Cosmo’?

    Do they recognize *any* limits on the right of the employer to snoop into and micromanage the lives of employees?

  • colleen

    Should employers be able to stop their  employees from purchasing, say, condoms, ED drugs, prostitutes, guns, vacations in countries the employer disapproves of etc? Or are employers only interested in contrlling the most personal and private decisions of their female emploee’s lives?

  • give-em-hell-mary

    What will they demand next? — the right to inspect the undies of all fertile female employees for potential “dead babies”?

  • laura-barnes

    It used to be that people would only choose a company/entity that reflected their beliefs and if they didn’t, they were willing to eat the cost.  It went both ways.  We have become a “one size fits all” nation, that is creating more problems than it is worth! Maybe instead of viewing it as an infringement of rights, it should be viewed as thankfulness to a job.  After this is all done, how many jobs will be lost over something you can buy at Walmart for $10 on your own.  Hmmmm. Loss of jobs or someone paying $10 for something that you want to spend your money on at a job you chose, regardless of their beliefs.  Don’t make this about you! Did it ever occur to you that the business you work for might be successful because of their beliefs. Hobby Lobby doesn’t screen people when they hire according to thier views on birth control or abortion, they offer a job that allows you to buy anything they don’t cover.  

  • laura-barnes

    That is rediculous! Hobby Lobby isn’t screening people for those things.  They just requested that when it came to birth control and abortion methods to be kept out of their insurance policy.  I am sure they know they have employees that are involved in all of the things you listed.  Those things come out of their own checks and time away from work.  Why make a successsful company/ entity pay for something that they feel is wrong?  They aren’t saying their employees cant buy birth control, they are saying they don’t want pay for something that is wrong to them. Just wait until someone forces you to make a decision you can’t morally stand on, would you want your rights then? The bigger question is do people want to force companies to do what they want in exchange for lower quality or no jobs at all? You can’t make people all be the same, it doesnt work!

  • colleen

    Maybe instead of viewing it as an infringement of rights, it should be viewed as thankfulness to a job.

    You would make a good serf .

  • laura-barnes

    The definition of a serf:  An agricultural laborer bound under the feudal system to work on his lord’s estate.

    It may seem weird, but yes I probably would make a good serf.  The “lord” provides the means for what we need, not always what we want.  In this case an owner of a company is what provides a job that allows you to spend your money how you see fit, they aren’t forcing you to accept a job that acknowledges thier beliefs before you even started. Don’t apply to jobs that aren’t in your job description.  Unless they hired you to change thier system, just work and do a good job.  Choose another company if it bothers you so much!

  • jennifer-starr

    they aren’t forcing you to accept a job that acknowledges thier beliefs before you even started. Don’t apply to jobs that aren’t in your job description.  Unless they hired you to change thier system, just work and do a good job.  Choose another company if it bothers you so much!

    Perhaps you’d like to explain to me how an arts and crafts store is an overtly religious establishment? Oh right–it’s not.   Just how are employees for secular establishments supposed to guess the religious beliefs of their employers? Mental telepathy? 

  • give-em-hell-mary

    Guess you’ve been living on another planet while our massive overpopulation versus job-industrialization and -outsourcing to overpopulated slave labor markets have gutted America’s middle class!  And since I’m facially disfigured by my anti-choice terrorist mom, prospective employers and their squeamish staffers always give me the bum’s rush.  I do reluctantly work at a conservative company because NO OTHER company will have me!  And my liberal colleagues are in the same boat.  We have also barely survived many scary downsizing rounds.  You wouldn’t make a good serf like me because you’re too spoiled, pampered, sheltered, greedy and deliberately ignorant!

  • jennifer-starr

    Unless someone is forcing them to personally ingest birth control against their will, I don’t see where their rights are being violated. And the employee is the one paying the premiums.  This argument is about as ridiculous as a pharmacist refusing to fill a prescription because it’s against his so-called conscience. 

  • give-em-hell-mary

    So you’re OK with misogynist Islamic waiters refusing to serve you at American restaurants because they practice religious gender apartheid back home?  You’re OK with being denied emergency insulin at the only hospital for hundreds of miles because the staff are all Christian Scientists? 

    “You can’t make people all be the same, it doesnt work!”

    Too bad you don’t practice what you preach, hypocrite!

  • ljean8080

    I am greedy?

  • jennifer-starr

    She was replying to a comment made by Laura Barnes–not everything is about you, you know. 

  • give-em-hell-mary

    I was not addressing you!

    Or are you using a sock puppet??

    By greedy, I mean that corporate apologists for the crime-ridden RCC are happy to force deadly, bankrupting unwanted pregnancies on female employees just to save a few corporate pennies for the hooker-banging, Viagra-snorting CEOs like Tom Monaghan and Eric Prince. 

    I wasn’t impuning SS-dependent disabled people who have never worked a day in their non-lavish, house-bound lives.  Although if you had worked gruelling hours for low pay, you would get a clue why your married co-workers depend on low-cost contraceptives to avoid divorce and homelessness caused by catastrophic problem pregnancies.

  • give-em-hell-mary

    Thanks!  You beat me to it!

  • give-em-hell-mary

    Maybe they only sell paint-by-number pictures of Jesus? ;D

  • ljean8080


  • laura-barnes

    It is no secret who owns Hobby Lobby, the same owner as Mardel.  They have never hidden that they have these beliefs.  Sounds like there are people who want to be hired and not find out who they are applying to.  I have never accepted a job I didn’t research.  If you are concerned about these issues you might want to ask about it at an interview or ask to see what their insurance benefits are before accepting the offer.  Regardless of this issue that brings us to this discussion.  

  • give-em-hell-mary

    Well I never heard about pro-dead mothers owning Hobby Lobby and Mardel until now.  And as a spinster facially disfigured by an anti-abortion terrorist mother, I certainly wasn’t going to grill prospective non-religious employers over their company coverage for acne-treating birth control pills!  For most years, I didn’t have home internet access and currently don’t because of greedy Verizon fraud.  Get over yourself, “sister”.

  • jennifer-starr

    The fact remains that it’s still a SECULAR establishment.  Not a religious one.  And I don’t think that employees should suffer for the bizarre religious rules of their employers, particularly when they don’t follow that particular religion.  Unless the owners of Hobby Lobby are being forced to take birth control themselves, their rights are not being violated. 

  • give-em-hell-mary

    Thank you!  I resent all secular businesses morphing over night into Magdalene Laundry/Transvaginal Homeland Security screeners for the pedophile-protecting RCC!  Since when did all U.S. female employees get randomly conscripted into the RCC’s forced breeding mill?

  • colleen

    I have never accepted a job I didn’t research.

    Yes, well the fact of the matter is that the religious affiliation of employers should NOT be something women should be forced to worry about, not in a functional Democracy and the fact of the matter is that religious affiliation is NOT a matter of public record. Freedom of religion does not mean that  all women must conform to the unacceptable doctrines of vicious religion in order to effectively participate in a society. Employers who think it should need to relocate. Perhaps Saudi Arabia or the UAE or a South American dictatorship.

    I hope that every fundie business preying on it’s female customers and discriminating against it’s female employees is required to make public it’s objections and ugly bigotry. The problem  is that those businesses are going to object mightily because they KNOW that normal, self respecting women (not women like you, you have already made that clear) will boycott them and do our best to destroy their business. 

  • jennifer-starr

    I’ve never been to Hobby Lobby –they’re in Virginia, apparently, but not anywhere near where I live.  But after doing a little research, I’d like someone to explain to me why their store refuses to use barcodes, because that is seriously peculiar. Is that something to do with their particular religious beliefs as well? 

  • give-em-hell-mary


  • give-em-hell-mary

    I’m not an expert, but some fundies believe bar codes can signify the End Times “Mark of the Beast”.

  • deb-r

    what if an employer is a Jehovahs witness–could they say that their insurance cannot cover blood transfusions for employees? My husband had a health crisis recently and needed blood or he would have died–I am sure glad his employer could not deny that! Now if JW’s would rather die than receive blood that is their choice but they shouldn’t make that choice for anyone else. What if an employer is christian scientist and doesn’t want to cover ANY medical care(only prayer)? Or a Scientologist and doesn’t believe in anti-depressants? It seems to always be about women’s sexuality thougt doesn’t it?

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