Justice Ginsburg recently gave an interview discussing a range of topics, including the Supreme Court’s recent decision in Hobby Lobby v. Burwell, which held that the Religious Freedom Restoration Act protected closely-held, for-profit corporations against the so-called “contraceptive mandate” that was issued by HHS as part of the President’s health care law. While Ginsburg opined on a variety of issues, it was disappointing to hear her words on how the male justices may have a “have a blind spot” when it comes to women.
This type of categorical statement should be subject to precisely the same standard by which it seems to judge. Does Justice Ginsburg truly believe that the male justices that voted with the majority in Hobby Lobby made their decision based on an aversion towards the interests of women as defined by Ginsburg and proponents of the mandate? Is that really the basis of the argument advanced by the majority? Couldn’t the same logic be applied to Ginsburg’s forceful dissent, which like the majority opinion, involves careful citation of precedent and line after line of legal reasoning? And how would Justice Ginsburg explain the numerous female judges, including one of her colleagues, that have issued injunctive relief on behalf of similarly situated plaintiffs, such as the Little Sisters of the Poor?
Ginsburg’s framing of the case as a constitutional matter also suggests an inability to view the case through the lens of the actual claim put before the Court by the plaintiffs, namely the right to religious freedom under a duly-enacted statute. This is especially troubling given that the case was primarily one of statutory interpretation, not public policy (whether that should be addressed by the Court is a matter for a separate discussion), or the scope of the Free Exercise Clause. Hobby Lobby is a statutory case–always has been and always will be. It makes no comment on whether the plaintiff’s claim would survive constitutional scrutiny should RFRA cease to exist.
Well-said, Brian. I find it hard to believe that Justice Ginsburg was being intellectually lazy in the way that many journalists or pundits are when she made this comment. But I can’t think of any other explanation. This baffles me.