Burwell v. Hobby Lobby

On this week’s episode of 5-4, Peter (@The_Law_Boy), Rhiannon (@AywaRhiannon), and Michael (@_FleerUltra) talk about the religious freedoms enjoyed by corporations.

A podcast where we dissect and analyze the Supreme Court cases that undermined America's integrity, like water seeping into our home's foundation

00:00 [Archival]: The second opinion addresses two cases, Burwell v. Hobby Lobby Stores, Inc, Number 13-354 and Conestoga Wood Specialties...

00:13 Leon Neyfakh: Hey, everyone. This is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon, and Michael are talking about religious freedom. In 2014, the Supreme Court ruled in Burwell v. Hobby Lobby that for-profit corporations may be exempt from laws and regulations they object to on religious grounds.

00:35 [Archival]: The ruling came just a short time ago. The arts and crafts retail chain will not be forced to pay to cover certain forms of contraceptives for their employees.

00:43 [Archival]: Issues combining abortion, religious liberty, ObamaCare, corporate rights all into this one ruling. And today, we heard the ruling from the five conservative justices ruling in favor of Hobby Lobby.

00:56 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

01:06 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have undermined America's integrity like water seeping into our homes' foundation [laughter] I am Peter. Twitter is The Law Boy. I'm here with Rhiannon...

01:20 Rhiannon: What up. Hi.

01:21 Peter: And Michael.

01:22 Michael: Hey, everybody.

01:24 Peter: Today, we're talking about Burwell v. Hobby Lobby stores, aka Hobby Lobby, as it is better known.

01:32 Rhiannon: Hobby Lobby. Hobby Lobby.

01:35 Peter: Alright, let's...


01:37 Peter: Let's not lose control.


01:40 Rhiannon: I told you guys this, right? That I cannot stop singing that in my head. It's a Hurricane Chris song about Halle Berry.

01:47 Michael: Oh yeah, you did.

01:48 Peter: Oh, you did. You told us that like months ago...

01:51 Michael: I was gonna say weeks ago. It's been a while.

01:55 Rhiannon: Okay. Go on.

01:56 Peter: In our Citizens United episode, we discuss the inherent absurdity of corporations having the right to political speech. Hobby Lobby takes that issue, digs a little deeper and asks us, "Can a for-profit corporation have a religion? Can a company that sells arts and craft supplies sincerely believe that our Lord and Savior Jesus Christ prohibits ladies from using contraception?" And the answer is yes.

02:21 Rhiannon: Of course it is.

02:23 Peter: Of course it can.

02:25 Michael: What else could it be?

02:27 Peter: This actually isn't a First Amendment case. This is a case about two laws. The Affordable Care Act, aka ObamaCare, requires employers to cover certain basic contraception in their employer-provided healthcare plans, but Hobby Lobby argues that this violates the Religious Freedom Restoration Act, better known as RFRA, which requires that laws accommodate the exercise of religious beliefs. They are religiously opposed to contraception, and so they claim they shouldn't have to provide it. The real bottom line of this case is that the court has endorsed a theory of corporations, whereby these legal entities, which are basically just stacks of paperwork, can have their own beliefs, and that has led us down this path of increasing absurdity where corporations now not only hold political positions, but also have thoughts about the afterlife.

03:21 Rhiannon: Right.


03:22 Peter: And this is in our first case where the majority is written by Sam Alito, but it is the prototypical Alito case, just like Roberts is at his best when he's feigning even-handedness, and Thomas is at his best when he's questioning century-old lines of precedent, Alito is at his best writing middling, incoherent opinions in defense of the most abstruse components of the Christian faith.

03:49 Rhiannon: That's right. I think a good sign of how absolutely stupid Justice Alito is is that I constantly get him confused... I get three people confused for one person. It's Sam Alito, Ted Cruz...


04:08 Rhiannon: And the Attorney General under George W. Bush, what was his name?

04:13 Michael: Alberto Gonzales.

04:15 Rhiannon: Alberto Gonzales! I can't fucking tell those three people apart, and that's, I think, all you need to know about Justice Alito.

04:22 Michael: Honestly, they are intellectually indistinguishable, as far as I can tell.

04:27 Rhiannon: Right! That's what I mean! It's all the same... All the same bullshit.

04:32 Peter: Right. So I think we have to go through some of the history here of how the Religious Freedom Restoration Act came to be. So, Rhiannon, tell us about what the early 90s were like.

04:44 Rhiannon: Yeah. Okay. Alright, so just talking about RFRA, the Religious Freedom Restoration Act, just wanna say up top, I don't think I read Hobby Lobby in law school, and it feels like a really complicated case. And I realized when prepping for this episode that it's because I don't really understand RFRA, because it's fucking stupid. I hate it. I don't understand it. It's really dumb. But you guys helped me, I appreciate that.

05:13 Michael: You're welcome.


05:15 Rhiannon: Okay. So, basically the constitution, right, we have it, it protects the free exercise of religion.

05:22 Peter: Alright, we're doing great.

05:23 Michael: Yeah.

05:23 Rhiannon: Cool. That's in The First Amendment, or whatever. You can look it up, bitches.

05:28 Michael: So far, so good.

05:29 Rhiannon: Yeah. Okay, but in the late 80s, the Supreme Court started to sort of clarify that laws that only incidentally burden or infringe on religious activity, those laws don't violate The First Amendment or the Constitution, as long as those laws are generally applicable to all citizens. So, for example, there was a case where the State of Oregon denied unemployment benefits to a person who was fired for using peyote, which was an illegal substance used in that person's religious ceremonies. And the Supreme Court in that case said, in fact, it was Justice Scalia, writing for the majority... The Supreme Court said, "This law doesn't violate the free exercise clause of The First Amendment," and it would kind of be crazy if we said it did, because we can't just allow every individual to use religion as an excuse to get around following laws that are neutral and generally applicable to everybody. The law, in that case, the Supreme Court said it's not aimed at religious activity, it's just a law banning an illegal substance for everybody. And Scalia quoted some old language about not allowing each person's religious beliefs to be superior to the law of the land, and this idea that we can't let each man become a law unto himself.

06:45 Peter: I think it was very much common sense at the time, that the purpose of The First Amendment's Free Exercise Clause was to prevent Congress from giving preferential treatment to one religion or another, or discriminating against one religion over another, rather than to be some sort of blanket protection upon religious practice.

07:06 Rhiannon: Yeah, yeah, I think that's right. But after that opinion is issued, lots of people are super big mad. So a bunch of groups get together, including the ACLU, the National Association of Evangelicals, which I think there's a whole podcast episode, maybe not this podcast, that's like a critique of the ACLU, and what it means if the ACLU is partnering with the National Association of Evangelicals, but whatever.

07:33 Peter: It was a different time.

07:35 Rhiannon: Liberals, am I right? Okay, anyways. So, a bunch of groups get together, they're screaming about religious freedom, saying the government shouldn't be able to substantially burden an individual's free exercise of their faith in this way. And so, as a direct response, Congress passes RFRA in 1993. So what RFRA says is that the government may substantially burden a person's exercise of religion only if the government demonstrates that application of the burden to the person is the least restrictive means of furthering a compelling governmental interest. In other words, if someone's exercise of religion is substantially burdened by a law, the government has to show that it has a really good reason for that law and that it used the least burdensome method it possibly could. So, for example, there was a case that came up under RFRA called Gonzales versus O Centro, and in that case, the Supreme Court said that members of a church could not be prosecuted after the Feds seized a sacramental tea that contained a Schedule I illegal substance. And in that case, the court said that the government didn't have a compelling interest, they hadn't shown a good enough reason for banning that specific drug, and so it failed under RFRA.

08:53 Peter: These are my kinds of religions, by the way...

08:55 Rhiannon: Right.

08:55 Peter: Sacramental tea with Schedule I drugs in it. I can get behind this.

09:00 Michael: Yeah, I'm finding religion as this podcast goes along.


09:06 Michael: I just wanna note really quickly that there's some debate in this case between the majority and the dissent, and I think Ginsburg and dissent gets the better of it, which is that this law, the way we're describing it might sound very sort of expansive, but it's about establishing what the status quo was before this peyote case. There was a line of cases that had used, basically, this test in the legislative history, and the language of the law itself references those cases, and it's supposed to be like a pretty low key, we're just going back to how things were, the same protections as they are, but as we'll discuss, the majority instead uses that language to fucking drive a truck through this tiny little pinhole exception. So...

09:53 Rhiannon: Yeah, that's a good point. Yup. So we get RFRA in 1993, and then, like Peter said up top, the Affordable Care Act is passed in 2010. And one result of ObamaCare is that all 20 contraceptive methods approved by the FDA are now fully covered by most employer-based healthcare plans. Now, Hobby Lobby, how do they get involved? Hobby Lobby is, of course, big arts and crafts store, they have hundreds of locations across the country, and they employ almost 30,000 people. Their founder...

10:27 Peter: And they have a great name.


10:31 Peter: What do we do? We're like hobby stuff. And it's... You know when you enter a building, that room's called the lobby, let's put those two together. That's our store. Bang. You're a billionaire.

10:45 Rhiannon: Boom.

10:46 Michael: I thought they were like...

10:47 Rhiannon: That's all it takes in America, baby.

10:48 Michael: I thought they were like, they lobby...

10:49 Peter: Lobby for hobbies?

10:51 Michael: For hobbies.


10:52 Michael: It's the Hobby Lobby.

10:54 Peter: I'll tell you what...

10:56 Michael: Everybody should get a hobby.

10:57 Peter: That makes more sense, and yet I think it's less likely.


11:02 Michael: It's definitely the big foyer name.

11:05 Rhiannon: Once we get into who these guys are, yeah, it's not that smart, not that bright. Okay. So their founder is CEO, David Green. He fancies himself a devoted Evangelical Christian. Hobby Lobby's website says that they are, quote, "Honoring the Lord in all we do by operating the company in a manner consistent with biblical principles." I don't know, it might be just Texas, but growing up, this language is particularly triggering to me. I don't know about you guys. Got some trauma there.

11:41 Peter: I just love it that any shitty company... These people just fucking mass purchase pipe cleaner and then resell it to elementary school students, and they're like, "And we're doing it for Jesus! [laughter] Put that on the website!"

11:57 Rhiannon: Yeah. So, after ObamaCare has passed, Hobby Lobby files this lawsuit, and specifically, they're objecting to the provision that coverage for contraception includes the morning-after pill and IUDs. They say, in a statement, that, quote, "The Green family's religious beliefs forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices." We'll just set that aside. That's fine. No comment necessary right now.


12:37 Peter: Abortion-causing drugs.

12:39 Rhiannon: Right, it's...

12:40 Peter: Sorry, I know you wanted to set it aside, but it's just worth saying twice.

12:43 Rhiannon: No, no, yeah. It's that absurd. Yeah. An important side note, I think about what happens when religious fundamentalists get rich and all the more reason to object to like whatever supposed moral or religious high ground they're trying to take. In this case, Hobby Lobby has had some other legal trouble in the past decade or so, and this other trouble is related to smuggling ancient artifacts out of Iraq and spending millions of dollars on the international artifact black market.

13:15 Michael: It's so insane. It's so nuts.

13:18 Rhiannon: It's wild how stupid they are and yet how rich.

13:22 Peter: They have a museum, right? Like a Bible museum.

13:24 Rhiannon: Yeah.

13:24 Peter: And they're just... They're funneling the artifacts into there.

13:28 Rhiannon: Yup. Yup. Yes. So, in 2010, the company gets the attention of federal law enforcement officials because they spent $1.6 million on Iraqi artifacts from dealers in the United Arab Emirates, and even though lawyers and artifact experts are voicing strong concerns, Hobby Lobby goes forward with it anyways. And in 2017, after ICE does an investigation and seizes a bunch of their shit, Hobby Lobby agrees to return more than 5500 artifacts and pay a fine of $3 million.

14:04 Michael: Can I cut in really quick?

14:05 Rhiannon: Please.

14:06 Michael: The fact that it's coming from dealers in the UAE, it's just not like a random note. The UAE is like a fucking money laundering hotspot. There are all these general trading companies that are just fronts for the Iranian National Guard, or the government of Iran, or various terrorist organizations, etcetera, etcetera. And they are max three degrees of separation from like Al-Qaeda.


14:34 Peter: Yes, 100%.

14:34 Michael: They're like directly terrorists through...

14:36 Rhiannon: Absolutely.

14:36 Michael: Like terrorist organizations, money launderers in Dubai. That's what this is.

14:42 Peter: Yeah. And another side note, I know times are tough, so if you got something that looks like maybe a biblical artifact and you wanna hawk that to someone for a quick buck, call up Hobby Lobby.

14:53 Rhiannon: Hobby Lobby's looking. [chuckle] For sure they're interested.

14:53 Peter: Walk right up to the receptionist. [laughter] She'll give you a fucking briefcase.

14:57 Rhiannon: She'll give you $500,000, sight unseen. Yeah. Okay. So, simultaneously, while the ICE investigation is going on, reports start popping up that the artifacts at the Museum of the Bible, which Peter mentioned, it's this museum that the Green family founded and runs, so reports start popping up that artifacts there are stolen or they're just completely fake. A couple of months ago, actually, it's revealed that all 16 fragments of the Dead Sea Scrolls that are on display at the Museum of the Bible...

15:30 Peter: They weren't real?

15:32 Rhiannon: They're all counterfeit.


15:33 Michael: What?

15:33 Peter: Fuck.

15:35 Rhiannon: Yeah, they're just made of modern ink on leather.

15:39 Peter: Did part of our background research into this find out what admission into the museum is? What does that cost?


15:44 Rhiannon: That's a really good question.

15:44 Michael: I just wanna know if there's some line like, and it's not even a convincing fake, like it's got... Real amateur.


15:52 Rhiannon: Right. Yeah. Egyptology experts also alleged that 11 ancient Bible fragments purchased by the Green family were purchased illegally and smuggled into the United States. And so Steve Green, David Green's son, he's the board chairman of the museum, he announced this year that the museum will be returning more than 11,000 artifacts to Egypt and Iraq. And here's this...

16:16 Peter: 11,000.

16:18 Rhiannon: 11,000. Yes. This expert in ancient artifacts at Manchester University, he said recently that the Green family, quote, "Poured millions on the legal and illegal antiquities market without having a clue about the history, the material features, cultural value, fragilities and problems of these objects."

16:39 Peter: He also said, "I don't understand. Is it a lobby where hobbies occur?"


16:46 Peter: All of this to say is, we're gonna walk through this and be talking about like these people's religious beliefs and sort of assuming that they have some level of sincerity to them, or whatever, but these people are deeply, to their core, some of the dumbest people on the planet. It's important to keep it in mind.

17:08 Michael: Yes.

17:08 Rhiannon: That's right. Too dumb, too rich.

17:08 Peter: That's right. So, as we've mentioned, the claim here is that the requirement of the ACA that employers provide insurance for contraception is a violation of RFRA, and one important aspect of this is that RFRA doesn't forbid laws from imposing on people's religious beliefs. As Rhi mentioned, what it does is subject those laws to strict scrutiny, meaning they must be serving a compelling purpose and must be the least restrictive means of achieving that purpose. And we've talked about strict scrutiny before. And just like in those cases here, you don't really need to know the details. The real point is that the ACA has an exception for religious institutions, such as churches and other religious non-profits, and they don't have to provide coverage for contraception under the ACA. And what the court says here is Hobby Lobby should be able to opt out too, 'cause they're a religious company. And similar to Citizens United, our second episode, the fundamental problem here, in my view, is this: Ruling that corporate entities somehow hold religious beliefs or the same religious beliefs as the people who run them allows corporations to have it both ways. First, they get to take advantage of the corporate form by creating a corporation that they can hide behind to limit their liability in the event they get sued or go bankrupt or whatever...

18:33 Rhiannon: Right.

18:33 Michael: Right.

18:34 Peter: So they're benefiting, in that case, from the separation of them as individuals and the corporation as an entity, but then, when it suits them, that separateness goes away, and suddenly their personal beliefs about religion are shared by the corporation itself. And, again, as we discussed in the Citizens United episode, the entire purpose of the corporation as a concept is to separate, for legal purposes, the owners and the entity. So this is flipping that on its head.

19:02 Michael: Right, and rather than recognize and trying to work around the absurdity of all this, the majority actually leans into it. They say, "Look, it's unfair that we're forcing people to choose between their religious beliefs and forming a corporation." But that's not unfair. That's the natural result of being able to insulate yourself from liability, by operating through a non-sentient entity. That's the definition of fairness.

19:30 Rhiannon: Right.

19:31 Peter: Yeah, it's a trade-off, right? That's the whole point of it.

19:34 Rhiannon: Right.

19:35 Peter: And it brings up a sort of interesting side point, which is that if Hobby Lobby's owners were really dedicated to their religion, they could employ all of their employees directly, right? You don't need to form a corporation at all. Nothing is stopping them from just striking up contracts between them personally and their employees, which would give them a much stronger religious objection here, because there wouldn't be a corporate entity in the way. But of course they don't do that. They wouldn't allow themselves to be exposed to that level of liability, right? That's why they formed a corporation, they want to take advantage of the corporate form. It's a trade-off that they chose to make, and what Alito is doing here is saying that they shouldn't even have to make that trade-off.

20:13 Rhiannon: Yeah, I have a question. Is the Green family... Are they billionaires for real?

20:17 Peter: I think in the aggregate, they are, but hold on, let me look them up, David Green.

20:21 Michael: The majority opinion seems to suggest it.

20:23 Peter: David Green is worth $7 billion.

20:26 Michael: Yeah, seven billion.

20:27 Rhiannon: From my research, it's Hobby Lobby. He's the son of a pastor, they were not rich. He's self-made with Hobby Lobby.

20:35 Michael: I don't think we've really mentioned it in here, but the majority spends two to three pages just talking about the owners and the families of these companies, which is just such schmaltzy bullshit.

20:46 Rhiannon: It's gross. Yeah, it's fucking disgusting.

20:49 Michael: Just like, oh, how they came from nothing and its family-run...

20:50 Rhiannon: Like fawning.

20:54 Michael: The son is the CEO and the other son is the Vice CEO, and blah blah blah. It's like when the law is shit, they will lead with facts that they think shade the opinion in a way that frames it favorably for them, but there's almost no discussion at all of like women, the benefits of contraception for them, the burdens of not getting it through their employer insurance will be... That's completely omitted. Instead, all the facts are about these families and their sincerely-held beliefs, and all that.

21:22 Rhiannon: So, yeah, a big part of what the court really leans on here is that everyone admits that the law covers religious, non-profit corporations. So Justice Alito says then it must cover for-profit corporations like Hobby Lobby also.

21:39 Michael: That makes sense.


21:43 Peter: I mean, look, pretending that religious non-profits, and when I say religious non-profits, I mean actual churches, that's what they tend to be, are comparable to Hobby Lobby here is insane. The court says, "Well, look, religious non-profits are still corporations and it applies to them, so it must apply to Hobby Lobby too." And first of all, you don't need to see that ground. I think there's a real argument that any type of corporation should be forbidden from claiming that it has religious status, and that possibly religious organizations should have a different type of entity altogether. But the difference is that religious non-profits are created for the literal purpose of expressing their religion, that's the whole point of making one, that's why they do it. Whereas, with for-profit corporations, the expression of religion is incidental, and that's a line worth drawing, I think. It's not abstract. It's not confusing. It's a clear difference between these types of corporate entities.

22:39 Michael: Wait, then what... Sorry. If religion is incidental, then what is the animating purpose of a for-profit corporation?


22:49 Peter: Alito mentions that companies like Hobby Lobby mention in their paperwork that part of their mission is to like...

22:57 Michael: Make money for Jesus.

23:00 Peter: Spread the gospel of Jesus, and it's like... But again, that seems like maybe a sideshow, where it's just like you could start a corporation and say that you... Yeah, what's my mission? It's profit and making beautiful music. That's what I do. And then, now all of a sudden, the court has to respect that, as if that's your primary purpose.

23:22 Michael: Look, man, David Green is worth $7 billion. I don't think spreading that money to religious organizations could be plausibly said to be a substantial motivation, if he's holding on to seven billion on his own.

23:38 Peter: If you've got seven billion, you're like, "I'm doing this for Jesus, baby."

23:42 Michael: Buying an island in the Caribbean for Jesus.

23:46 Rhiannon: And Ginsburg... Ruth Bader Ginsburg writes a dissent, and in that dissent, she basically mentions that neither The First Amendment case law, which is the foundation here, nor RFRA itself, make it clear that a for-profit corporation would be protected, which is essentially to say that the idea that the law would cover these corporations, that's totally made up by the court, in this case.

24:13 Michael: Right.

24:14 Peter: Right. And so, one note here that we wanna quickly mention is that the court says that, "Look, this only applies to closely-held corporations," which are corporations that are not publicly-traded. Closely-held corporations choose who they can sell stock too, and so the court is sort of implying here that they should be given more leeway about their religion, but absolutely nothing in the court's reasoning would stop them from extending the rule to public companies. Alito explicitly says that RFRA covers for-profit corporations, and he doesn't provide any reasoning that would rule out publicly-traded corporations. And I only bring this up to note that the reason that it's limited to closely-held corporations, and you'll often hear professors and scholars talk about this case as if it is limited to closely-held corporations, the only reason they do that is to obscure the actual breadth of the ruling and pretend that it's bound by some limiting principle, when in reality, it's not.

25:07 Rhiannon: Yeah.

25:08 Michael: Right. And at one point, Alito waves off these concerns and he says, "Look, publicly-traded companies would have difficulty bringing RFRA claims, because," and I quote, "The idea that unrelated shareholders, including institutional investors with their own set of stakeholders, would agree to run a corporation under the same religious beliefs seems improbable." Now, if that language sounds persuasive and familiar, it might be because you remember us saying that in Citizens United, about the idea that publicly-traded corporations could have a shared political belief. But that was the reasoning that that entire case fucking rested on. That was the entire basis of that case, was precisely that. And so...

25:53 Peter: And Kennedy, in that case, explicitly was like, "Hey, look, if you don't like what your corporation stands for, you can sell your stock."

26:00 Michael: Yes.

26:01 Rhiannon: Right. Right.

26:02 Michael: And I'm not saying, "Oh, they were full of shit then, but Alito is sincere now." They're full of shit in both instances. They don't care. It's not about whether this is right or wrong, and this time, they're owning up to the truth. It's whatever rhetorically serves their ideological purpose is the position they'll adopt, and it doesn't matter what lies beneath that at all.

26:26 Rhiannon: Full of shit, 24/7.

26:27 Michael: That's right.

26:28 Peter: Yeah, absolutely. Alright. And now, we get to the meat of this, because even if you accept that Hobby Lobby is a religious corporate entity, protected by RFRA, the question is whether the requirement that they provide contraceptive insurance to their employees is a, quote, "Substantial burden on their exercise of religion."

26:52 Rhiannon: Right, and when talking about the burden, the court talks about the fines under the law if they continue to violate it, which are, in fact, substantial, so they're facing... I think it's $100 a day, per person, is the fine that's built into the law. But that's not what the analysis should be. The analysis should be whether complying with the law burdens Hobby Lobby, and the court really doesn't address that at all, which is completely nuts because it's the central question of the entire case.

27:22 Peter: Yeah, when I read it, I almost said I was misunderstanding the analysis. It's like, "Why are we talking about the fines if they don't comply?" The question is compliance, and what the burden imposed by compliance is, but they dodge it for a reason. So, Hobby Lobby says that they're opposed to contraception. Okay. The law doesn't require that they use it, it doesn't require that they provide it, it doesn't require that they purchase it. What it requires is that they provide funds into a healthcare plan, that, among many, many other things, covers contraception. That's not a substantial burden on their exercise of religion. There are at least three independent parties, the insurers, the employees and the physicians, standing between Hobby Lobby and the actual use of contraception. If that's a substantial burden on Hobby Lobby's exercise of religion, then the word substantial is meaningless, I think. How much more attenuated could their connection to the actual use of contraception really be here? Does anyone actually believe that providing employees with insurance equates to a moral endorsement of whatever they choose to use it for?

28:34 Rhiannon: Right. Right. And this is basically... It's just Hobby Lobby saying that it burdens their religion to know that their employees are using their wages from Hobby Lobby, for things Hobby Lobby disagrees with. And there's a real looming threat here that employers could say, "Look, it's infringing our religious expression when our employees use their wages for reproductive health services." And that might seem far-fetched, but there's really very little distance between that logic and the logic of the decision here. The absurdity of the opinion, in this part of the opinion, is really highlighted if you just thought about a corporation whose owners are Muslim, doing the same thing, what the outrage would be, what the reaction would be. And you kind of see that this is really about religious supremacy, this is really about Christian supremacy, right?

29:27 Michael: Right.

29:27 Peter: Absolutely. Look, if everyone in the country freaked out when they tried to build a mosque within a mile of Ground Zero.

29:34 Michael: Right, they said on Ground Zero, but it was blocks and blocks away.

29:38 Peter: It was in New York City [laughter] If you imagine that there were Muslim owners of this company or a similar company that said they didn't wanna pay... Rhi, I was posing this to you. I was like, "What if these people were Muslim?" And you were like, "Well, they don't oppose contraception."

29:54 Rhiannon: Yeah, not at all. Yeah.

29:57 Peter: It's a better religion. What can we say? [laughter] But they oppose life insurance, and you can see the same thing coming up, and there's no fucking way it gets five votes on a Supreme Court, no fucking way.

30:08 Rhiannon: Absolutely not.

30:09 Peter: In our Trump v. Hawaii episode, we talked about how dismissive the court was of Trump's obvious discriminatory animus toward Muslims. And that's why it's almost disingenuous or misleading to talk about freedom of religion under the Constitution, as if it's like this universal concept. Here, the court is treating something almost imperceptible, as if it is an unacceptable burden on the religion of Hobby Lobby. And that's because we're not just talking about religion, we're talking about the court's favorite religion. And every Conservative on this court is a practicing Christian, they're all Catholics, except for Gorsuch, who is an Episcopalian. Same fucking thing, I'm gonna say it.

30:56 Rhiannon: Yeah, diet Catholic.

30:58 Peter: Same fucking thing.

31:00 Michael: I have no idea.

31:01 Peter: Well, to be clear, he was raised Catholic and is now an Episcopalian. I will say, in Gorsuch's defense, I came across some articles saying that the pastor, or whatever it is at the Episcopalian church he was at, was too liberal, that was an issue for Conservatives during his confirmation. Look, if you don't think that some fucking freak like Alito is biased towards his own religion, you're out of your minds. His opinions drip with it. He has openly spoken to religious legal groups about his desire to expand the definition of religious freedom, and all of his opinions need to be read with that in mind.

31:39 Michael: Right, there's an interesting thing sometimes I think about, which is why certain Justices get certain opinions, and the way they're assigned is, if the Chief Justice is the majority, he picks who writes it, and if he's not, then the most senior judge, who's been on the court the longest, chooses who writes it. And here, it was actually... Everybody thought Roberts had this opinion. There were only two left in the term, when this was coming down. It came down on the last day. It was like Alito needed one, and then it was kind of like anybody could take it, and everybody was like, "That's a big fucking high-profile case, this is Roberts all the way." And he gave it to fucking Alito. It's like, "Why? Why does the intellectual lightweight of the court, the weakest writer in the Conservatives, why is he getting this high-profile case?" And maybe it's that this is an ideological goal, but I kind of think the answer is just that, look, they know this is shit. They know that they have to rest this entire opinion on some technical bullshit, and hide from inconvenient facts, and hide from inconvenient law, and Alito is the... He's the fucking hatchet man.

32:49 Michael: He's the right wing hack who will come do the dirty work of writing the crap opinion, where they're just making shit up and talking about legislative purpose, which the Conservatives usually hate, and talking about policy considerations, which the Conservatives usually hate. And just doing the shit that Roberts and Scalia and all them feel like they're above, which is the more blatant, overt, partisan decisions.

33:17 Rhiannon: Yeah. Michael, please use the past tense when you're discussing Scalia...

33:23 Michael: That's right. That's right.

33:25 Rhiannon: 'Cause he's fucking dead.

33:28 Peter: Deceased. Parenthesis, deceased.

33:32 Michael: In other way, in addition to what we've discussed, that Alito makes a mess of this shit, is that the supposed burden on Hobby Lobby needs to be weighed against the burden on the employee to want access to contraception, and that's just like even the court concedes at that one point in the opinion, but they barely address it.

33:54 Rhiannon: Yeah.

33:54 Michael: You use a few little rhetorical tricks to do this. One thing is that the court doesn't actually decide what the exemption here that Hobby Lobby is asking for will look like. It just remands to the lower courts to sort of figure out the details. But that means that the burdens this will create on Hobby Lobby's employees and the other plaintiffs' employees, we can't say with specificity what those are, because one plaintiff suggested that, "Look, if our employees buy contraception with their own money and get a tax credit, that's fine." But that burden would be having to pay out-of-pocket upfront cost, which is a serious obstacle, like an IUD costs like a month of minimum wage. Another proposed solution involved employees having to learn that they could get this free contraceptive coverage on their own and go talk to the insurer on their own and be like the total instigator. And these are the things that will essentially make it almost certain that a substantial number of the employees simply just would not get coverage that they otherwise would be entitled to, right?

35:02 Rhiannon: Absolutely, yeah.

35:03 Michael: And the court just sort of dodges discussing that at all. And it's not just the burdens that they dodge, they also dodge the benefits that contraception provides women, which is, like we mentioned briefly that, under RFRA, the government has these laws that impinge on the exercise of religion. They need to justify it with a compelling interest. And what the court says here is, "Look, we'll just assume, for the sake of argument, that guaranteeing access to contraception is a compelling interest." But what that lets them do is just avoid talking about the way contraception reduces unwanted pregnancies, the fact that it can treat all sorts of other medical conditions, the fact that there's dangerous pregnancies that's very important for the health of women, that it's been shown to improve the socioeconomic status of women.

35:52 Rhiannon: Right.

35:53 Peter: And it leaves the door open in the future, right?

35:55 Rhiannon: Right.

35:55 Peter: So they say like, "Look, we're gonna assume that the provision of contraception is a compelling government interest," and then move on from there. But what that does is allow them, in the future, to say that it's not a compelling government interest. They can say, "Look, yeah, in the Hobby Lobby case, we assumed it was true, but here we have to examine it, and it turns out it's not."

36:14 Michael: Right. And at the end of the day, what this does, by sort of aligning both the way this burdens women and the ways in which contraception benefits women, this opinion, which is about women's access to contraception, omits consideration of women entirely.

36:30 Rhiannon: Exactly.

36:31 Michael: It's just profoundly sexist. It's hard to overstate.

36:34 Rhiannon: Right, yeah.

36:35 Peter: It really is, yeah. And that, I think, goes to the real objective of Hobby Lobby, the company here, and the reactionary movement, which is not to exercise its religion freely, but to ensure that access to contraception is as onerous for women as possible.

36:52 Rhiannon: Exactly.

36:52 Peter: And if you think that's an exaggeration of their goals here, know this, the solution that the courts came up with, ultimately, here, was to grant for-profit companies like Hobby Lobby essentially the same exemption that applied to non-profit religious organizations. They would fill out a form, saying they had an objection to providing contraceptive insurance, and the employees would then have to work directly with their insurers if they wanted contraceptive insurance, right?

37:20 Michael: Right.

37:20 Peter: It seems like that might be a compromise of sorts, but Conservative companies have challenged that, saying, "Even that is a burden on their religious exercise because they claim it makes them complicit in the provision of insurance." They tell the government that they are opting out, and that sets in motion a chain of events that ultimately leads to people getting contraception. That issue is now before the Supreme Court again, and it goes to show what these people are after. They aren't looking for compromise. They aren't looking for accommodation. They are looking to impose their psychotic culture war bullshit on everyone else.

38:02 Michael: Right.

38:03 Rhiannon: Yeah, it goes back to exactly what I said before, which is that Hobby Lobby, what they would like to be able to say is we don't want our employees spending their wages that they earned at our company on things we object to. And again, if a Muslim owner was saying like, I don't know, "I don't want my employees spending a lot of money on food because it's Ramadan." It's absolutely insane. It's ridiculous.

38:28 Michael: Right. It's wild because it's like... It's not saying you want an exemption from the law. It's like saying the law doesn't apply to us.

38:35 Rhiannon: Right.

38:35 Michael: We shouldn't have to notify you that we're not complying with the law, because we just... We're just not gonna obey the law.

38:40 Rhiannon: Exactly.

38:41 Michael: That's not for us.

38:42 Peter: Right, it's just placing Hobby Lobby's religion, as they describe it, above the rights of everyone else, regardless of what those rights look like substantively.

38:54 Rhiannon: Yep.

38:54 Michael: Right.

38:54 Peter: You might be listening to this and be a little bit confused because, in the early to mid-2000s, the political right had sort of centralized around religion, right? In the Bush years, Evangelical Christianity felt like it was the driving force behind American Conservatism, and now it feels that the right has become completely untethered from it. And that might feel to you as if those are just different ideologies, or something, but it's important to remember that religion is not their ideology, fascism is. Fascism is about control centered in a small group, and religion is just leverage to these people. And that's not to say that there aren't people, probably like Sam Alito, who are religious ideologues, religious zealots, but the movement is not driven by zealotry, right? Religion is just a symbol, that they are good and right, and that is a guiding light for them to allow themselves to suppress their opposition by whatever means necessary.

40:09 Michael: Their goals and their mission are righteous, right? They have God and the flag behind them, and so it doesn't matter if they're the minority. It doesn't matter if what they're doing is anti-democratic, authoritarian, because they've got God on their side.

40:27 Rhiannon: And the means justify the ends. Look at this case, what is the result? The result is that women who work for Hobby Lobby don't get their contraceptive access and reproductive rights supported, and that's...

40:42 Peter: That's the ends.

40:43 Rhiannon: The point. [laughter] That's the point.

40:45 Peter: It's an important point because when you talk about the ends justifying the means, you might think that the ends are religious freedom and the means are the suppression of contraception, but it's the other way around.

41:00 Rhiannon: Exactly.

41:03 Peter: So we've talked about the burden on women who need contraception a bit, and I think that speaks for itself in a lot of ways, but as we wrap up, I wanna make a broader point about the relationship between employers and employees, because the average person's life is controlled by their employer in countless ways. They control a significant chunk of your waking hours, they can tell you what to wear and how to carry yourself. In many states, they control your personal affiliations, your political affiliations. And for some reason, in this country, if you want a decent healthcare plan, you have to do it through your employer. Huge numbers of Americans work for large corporations, considerably more than work for small businesses, and that leaves vast swathes of Americans at the mercy of a very small number of very wealthy people. And to put that in perspective, less than 1% of businesses employ over half of the private sector workforce, so when you hear the court weighing the religious rights of employers against the reproductive rights of employees, you need to keep in mind that they're weighing the religious rights of a handful of obscenely wealthy employers against the reproductive rights of millions. And the court...

42:23 Michael: Sorry, I thought you were at the end of the sentence there.


42:27 Peter: I know, I was but...


42:30 Michael: I'm sorry, 'cause...

42:32 Rhiannon: What were you gonna say?

42:33 Michael: You seem like you're on a roll, but I didn't realize.

42:36 Peter: I felt like I was on a roll, to be honest.


42:41 Michael: I was gonna say obscurely wealthy Republican donors.


42:44 Peter: Yeah.

42:44 Rhiannon: Yeah, that's right.

42:46 Peter: The nature of the relationship between employers and employees is such that one literally controls the livelihood of the other, but Conservatives have made it a priority to fight for the rights of employers, and they've done it by pretending that this imbalance of power doesn't exist. The result is a world where some dipshit CEO, who is clearly out of his fucking mind, buying thousands of fake artifacts the world over, can dictate the access that thousands and thousands of people have to contraception. So remember that the next time you hear someone say that this case is about religious freedom, it's not. It's about another one of the ways in which wealthy and powerful people control how the rest of us live.

43:35 Rhiannon: Fuck out of here.

43:36 Michael: That's right.


43:44 Peter: Next week is Hernandez v. Mesa, a case about whether or not it's cool for a border patrol agent to shoot a Mexican child from across the border.

43:55 Rhiannon: It's a rough one. Go ahead and schedule your therapy appointment for Tuesday afternoon.


44:02 Peter: And we've got our first guest, University of Texas, Professor Stephen Vladeck. One little note about him, he argued the case. Okay? We're getting heavy hitters.

44:14 Rhiannon: Casual. Casual.

44:15 Peter: This is a real podcast. Thank you. [laughter] Follow us on Twitter @fivefourpod. We'll see you next week.

44:24 Rhiannon: Yeah.

44:27 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.


44:50 Leon Neyfakh: From the Westwood One Podcast Network.