A Look Back—Justice Ginsburg’s Oral Dissent in Hobby Lobby

With the beginning of the new term at the Supreme Court comes the release of audio from last Term’s opinion announcements, available now on Oyez. In a previous post I discussed last Term’s most notable oral dissent, Justice Sotomayor’s in Schuette v. Coalition to Defend Affirmative Action, in which she challenged her conservative colleagues for their unwillingness to confront the “reality of race in American society.” In this post I look at another of the Term’s major dissenting opinions that was announced from the bench: Justice Ginsburg’s oral dissent in Burwell v. Hobby Lobby.

In Hobby Lobby, the Court held that the Religious Freedom Restoration Act of 1993 (RFRA) prohibits the federal government from requiring businesses to include coverage in their health care plans for certain methods of contraception that the owners of the business object to on religious grounds. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented.

Justice Ginsburg’s Hobby Lobby oral dissent, like Justice Sotomayor’s oral dissent in Schuette, consists of excerpts from her written opinion, with some reordering of arguments and minor editing. And like Sotomayor, Ginsburg made some interesting decisions in translating her lengthy written dissent into a spoken summary.

Justice Ginsburg opted not to start off with the sharp language that begins her written dissent. The written dissent opens with a denunciation of the majority’s decision as one “of startling breadth,” as “extreme” and “radical.” In her bench announcement, by contrast, Justice Ginsburg skips over the accusatory, attention-grabbing language of her written opinion’s introduction. The bench dissent opens rather mildly, with a discussion of the goals of the Affordable Care Act (ACA), the source of the contraception requirement, summarizing material from the body of her written dissent.

Justice Ginsburg’s decision to place the ACA at the heart of the case is significant, of course. Justice Alito in his majority opinion (both the written version and his bench announcement) places the focus from the start squarely on the companies claiming a religious exemption from the ACA’s contraception coverage requirement. Justice Alito’s discussion of the ACA comes later in the opinion, and then it is rather perfunctory. (In her written opinion, Justice Ginsburg notes that the majority only “grudgingly” conceded that the contraception requirement met RFRA’s “compelling government interest” requirement.) Justice Ginsburg’s point, then, is that the case is as much about the ACA and the law’s goal of providing preventative medical care that was, as she wrote in her opinion, “responsive to women’s needs,” as it was about religious freedom.

In reading her dissent, Justice Ginsburg starts off slowly, almost haltingly. Her presentation gains force over the course of her reading, however, as she settles into her characteristic presentation style, soft-spoken and precise.

Ginsburg’s bench announcement emphasizes in particular two themes from her written dissent. First, as indicated by her decision to start her oral dissent with a discussion of the ACA, she insists that more attention be given to the costs to women of granting companies a religious exemption from the contraception coverage requirement. In their near-exclusive focus on the religious freedom claim of the businesses, the justices in the majority, she argues, fail to appreciate the impact of their decision on the intended beneficiaries of the ACA. To amplify this point, she quotes Zechariah Chaffee’s famous description of the limits of free speech: “Your right to swing your arm ends where the other man’s nose begins.” (She really likes this quotation. Not only did she feature it in her written and oral dissents, she also quoted it in a recent interview when discussing Hobby Lobby.) Her basic point: religious-based choices should not be imposed on employees who do not hold those beliefs.

A second theme that features prominently in her bench dissent is a concern with the implications of the Court’s holding. “Reading the [Religious Freedom Restoration] Act expansively, as the Court does, raises a host of me-too questions,” she notes early in her oral dissent. She identifies potential future religious freedom claims, deriving from religious-based objections to blood transfusions, vaccinations, antidepressants, or medications derived from pigs. She returns to these slippery-slope concerns later in her oral dissent. What about religious objections to minimum wage or equal pay for equal work? What about a religious-based refusal to employ “a single woman without her father’s consent or a married woman without her husband’s consent”? These are all scenarios that featured prominently at oral argument and that appear toward the end of her written dissent. They are all evidence, she suggests, of the “potentially sweeping” nature of the majority’s decision.

In concluding her oral dissent, Justice Ginsburg turns to the values and limits of a religiously pluralistic society. She pulls material from a footnote of her written opinion, stating that “[o]ur cosmopolitan nation is made up of people of almost every conceivable religious preference” (quoting from Braunfeld v. Brown (1961)). She then draws on language from United States v. Lee (1982), a case involving a free exercise challenge by an Amish businessman who claimed a religious-based exemption from paying into Social Security. “[S]ome religious practices,” the Lee Court explained, must “yield to the common good.”

In this way, Justice Ginsburg returns to where she began, with the values advanced through the ACA and the need to ensure that the preventative health care provisions of the ACA remain effective. While lacking some of the personalized passion that came through in Justice Sotomayor’s Schuette oral dissent, Justice Ginsburg’s Hobby Lobby oral dissent puts well on display her quieter persuasive skills.

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