Reading Hobby Lobby in Context by Linda Greenhouse

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To grasp the full implications of the Supreme Court’s Hobby Lobby decision, it helps to read it not in isolation but alongside the court’s other major religion case of the term, Town of Greece v. Galloway. Issued eight weeks before Hobby Lobby and decided by the same 5 to 4 division, Town of Greece rejected a challenge to a town board’s practice of beginning its public sessions with a Christian prayer. A federal appeals court found the practice unconstitutional, concluding that it violated the First Amendment’s Establishment Clause by conveying an official endorsement of one particular religion.

In his controlling opinion overturning that ruling, Justice Anthony M. Kennedy brushed past the complaint raised by the two non-Christian plaintiffs who said that having to endure a Christian religious observance whenever they showed up to conduct business with the town board made them feel excluded from the community and diminished as citizens. “Adults often encounter speech they find disagreeable,” Justice Kennedy wrote, adding that after all, there was no attempt at coercion or intimidation. “Legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate,” he said.

Compare this breezy dismissal of a complaint by two actual people to the extreme solicitude five members of the court displayed two months later toward Hobby Lobby Stores, Inc., a multibillion-dollar corporation with 13,000 employees in some 500 locations. Given the undisputed sincerity of the religious beliefs of Hobby Lobby’s Evangelical Christian owners, the company couldn’t be required to comply with the mandate to include contraception coverage in its employee health plan, according to the majority opinion by Justice Samuel A. Alito Jr.

Granted, these two decisions, Town of Greece and Hobby Lobby, aren’t in direct conflict as a doctrinal matter. The First Amendment deals with religion in a single sentence with two separate clauses: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Each clause, Establishment and Free Exercise, has generated its own body of law. Town of Greece arose under the Establishment Clause. Hobby Lobby challenged the Affordable Care Act’s contraception mandate not directly under the Free Exercise Clause, but under the Religious Freedom Restoration Act, a law Congress enacted in 1993 to respond to a Supreme Court decision that Congress thought had interpreted the Free Exercise guarantee too narrowly. So this was, at heart although not as a formal matter, a Free Exercise claim.

Take a step back from the boundaries of formal doctrine, however, and the moves the Roberts court is making across the religious landscape as a whole come into view.

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