The Supreme Court ruling on BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC. has now opened up the precedent (ignoring how narrowly tailored the ruling was to only contraception) that under the RFRA, even if its a compelling government interest, the state cannot mandate any firm with sincere religious beliefs to carry out a requirement, so long as the government can pick up the slack? It seems like the least restrictive means will always be making the government do it instead and not restrict at all anyone’s religious beliefs.
On page 46 of the opinion, Alito writes: “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”
This certainly leaves open the possibility that the Court could rule differently on the “least restrictive means” issue in the future, but his language in section V-B, which discusses the “least restrictive means” test, seems to indicate that it is a difficult standard to pass. On page 41 of the opinion, he indicates that “the most straightforward way of [meeting the least restrictive means test] would be for the Government to assume the cost.” He also says that “HHS has not shown … that this is not a viable alternative.” This seems to indicate that if such a challenge were to come up regarding vaccination or blood transfusions, or whatever else, the burden would be on the Department of Health and Human Services to show that it would be impractical for the Government to cover the cost. That would be quite the burden for the Government to prove.
Ginsberg seems to agree with that reading in her dissent. On page 29 on the dissent, she writes, “And where is the stopping point to the ‘let the government pay’ alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, … or according women equal pay for substantially similar work…? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?” In addition to indicating that the Court’s logic could prove problematic in the future, she asserts that it is flawed at present, saying, “In sum, in view of what Congress sought to accomplish, i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the proffered alternatives would satisfactorily serve the compelling interests to which Congress responded.”
I agree with Justice Ginsberg on many points here, especially the last few pages of her dissent. Justice Alito attempts to narrow his ruling as much as possible, but leaves a lot of questions unanswered as to the basis for his narrow ruling. To me, the most compelling arguments come from sections III-4 and IV (pages 27-35) of Ginsberg’s dissent. She basically asserts that the Court’s ruling has much broader implications than it intends, and poses quite a few questions about the basis for the narrow ruling.
I am also inclined to agree with her reasoning that the Court should have no business in determining which religious views are legitimate and which are not, and that religious exemptions from generally applicable law should be reserved for groups that are organized “for a religious purpose” and/or “engaged primarily in carrying out that religious purpose”.
The Supreme Court ruling can be found here: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf
Justice Ginsburg’s dissent here: http://www.scribd.com/mobile/doc/231974154
Pile of Bison skulls in the 1870’s. They were killed by hunters who were paid by the U.S. government.
“How many of you know the actual context behind this picture? It’s one they certainly don’t teach you in school. The U.S. Army promoted the wholesale extermination of bison herds in order to defeat the Native Americans, as bison were their main food supply. The U.S. government actually paid a bounty for each bison skull recovered. A section of the Royal Museum of Alberta in Canada has a small section dedicated to this, with this very picture.” (Source)
Throughout the 1800’s the North American Bison were hunted to such an extreme that their numbers declined from tens of millions to under less than one thousand.
You can see the pile is in front of a processing plant (it’s in the background). Bison bones were ground up into bone meal fertilizer or charred to make bone black, a substance with several uses (one is refining sugar, bone black can be used to absorb impurities and help give the sugar it’s white color).