Tuesday’s TOP TEN reasons to love, like, and hate Justice Ginsburg’s Hobby Lobby Dissent, Professor Marci A. Hamilton and Professor Leslie C. Griffin, Hamilton and Griffin on Rights

Tuesday’s Top Ten: ThGinsburDissent


1. We love that there was a dissent (if it couldn’t be a majority).

2. We love her line that correctly calls the majority’s reasoning a “minefield.”   So true!

3. We love that she treats the burden on women as meaningful.  The male majority could not even bring itself to establish dictum on women’s rights and the government’s strong and unassailable interests.

4. We like that it begins: “In a decision of startling breadth,” accurately portraying the opinion against the majority’s ultimately unpersuasive attempts to narrow it.

5. We like that she calls the accommodation “extreme” in paragraph 2, thus echoing what Professor Hamilton has been telling us for 20 years and reemphasizes in her new edition of God vs the Gavel.

6.  We are grateful that she accurately represented United States v. Lee and its two key First Amendment rules.  First, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, . . . the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” Second, a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.”  Amen.

7. We like that she delineated what comes next: demands for exemptions from health care for blood transfusions; mental health care; and medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin and vaccinations.  Moreover RFRA is hardly limited to carving back the Affordable Care Act. How about the owner of the restaurant chain that refuses to serve black patrons based on his religious beliefs opposing racial integration; religious owners of closely held, for-profit health clubs that reject hiring individuals who are in couples who are not married according to their religious requirements, whether unmarried or married in a same-sex relationship; or the employer whose beliefs preclude hiring a “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” or any person “antagonistic to the Bible,” including “fornicators and homosexuals.”

8.We like that she, along with Justice Sotomayor, and unlike Justices Kagan and Breyer, was willing to reach and decide correctly that corporations are not persons under RFRA.

9.  We were disappointed that she succumbed to the RFRA propaganda that says the Court had employed the “least restrictive means” test before RFRA.  It just isn’t true and if she had said it in a majority, the state RFRAs would have found an ally in Ruth Bader Ginsburg, as they are pushed as benign extensions of prior law.  That is NOT TRUE.