More on bakers & free speech: Why Hobby Lobby decision doesn’t matter

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Hobby Lobby in Mansfield, Ohio

Nicholas Eckhart vis Flickr

Hobby Lobby in Mansfield, Ohio

On Monday, I explained why bakers, photographers, and other businesses don’t have free speech exemptions to discrimination laws. One of the immediate reactions was to question whether I was right that bakers and the like are businesses, not individuals. “What about Hobby Lobby? Aren’t some businesses persons?”

Yes and no. They have rights, but they are not the same as individuals. As a citizen, I can pretty much say whatever I want. I can bake a cake and give it to whomever I want. I can pick and choose which weddings to photograph. But if I’m doing these things for money, then I’m engaging in commerce. As such, I’m a business making business decisions. I’m no longer a person merely expressing my views.

Hobby Lobby in Mansfield, Ohio

Hobby Lobby in Mansfield, Ohio

Here are three specific reasons why Hobby Lobby doesn’t apply.

1. The Hobby Lobby decision wasn’t about the First Amendment

This isn’t a technicality. The Hobby Lobby decision wasn’t about speech. It was not even about how to interpret First Amendment protections for the free exercise of religion.

Instead, Hobby Lobby centered around the interpretation of the Religious Freedom Restoration Act of 1993 (RFRA or “rif’-raw”). This 1993 law clarifies/restores/invents limits to government burdens on the exercise of religion. It stated that the government can’t substantially burden a person’s religious beliefs and practices unless it does so in a way that is “the least restrictive means of furthering [a] compelling governmental interest.”

Translation: The government can’t force people to do something if there is another way to achieve the same result without burdening a person’s religious exercise.

If Hobby Lobby were about the First Amendment only, then it may not have been decided the same way. In 1982, the Court ruled that when anyone freely enters into commercial activity, they do so with the understanding that there are rules that they must follow, rules that may violate their beliefs. People can’t get out of a regulation (that everyone else has to follow) just because it runs counter to their beliefs and practices.

RFRA, however, goes one step further. Regulations may still impose on people’s beliefs, but they can’t do so if there is an alternative that achieves the same purpose but without the imposition.

2. Even if Hobby Lobby applied, the decision specifically stated that discrimination laws did not meet the RFRA test.

The Hobby Lobby decision clearly raised the question of whether there could be a religious exemption to regulations on hiring and public accommodation. Could a baker refuse to serve [fill in the blank] because of religious objections?

The Court flatly stated that this was not a possible interpretation of its ruling. Referring to Justice Ginsburg’s dissent, the Court said that its decision could not be used to give legal sanction to discrimination. Later in the decision, the Court returns to the issue, stating that its decision does not “provide a shield for employers who might cloak illegal discrimination as a religious practice.”

In the eyes of the majority, the key difference between the contraceptive mandate in the Hobby Lobby case and laws on discrimination is that the government could achieve its goals with the contraceptive mandate in another way. Laws on hiring, providing services, and the like are designed to give everyone access to commerce. There isn’t another way to achieve that goal.

3. The same court that ruled in Hobby Lobby refused to consider the case of a photographer who refused a same-sex wedding.

It takes five justices to make a majority, but only four to consider a case. In the same term that decided Hobby Lobby, the Court refused to consider the case of a New Mexico photographer who would not take pictures at a same-sex wedding ceremony.

The photographers in the case argued that providing photography services at a lesbian couple’s ceremony would violate their free speech claims. The Court upheld the New Mexico Supreme Court ruling that there were no free speech claims that trumped the public accommodation protections, which in New Mexico includes sexual orientation.

When the Court refuses to hear a case, it doesn’t necessarily mean that it agrees completely with the lower court. But it does suggest that the same justices who saw Hobby Lobby as a violation of RFRA did not see the same need to intervene to protect free speech claims used by photographers, bakers, and other businesses who want to justify why they should be exempt from discrimination laws.

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