Texas' small businesses can rest easier today. The U.S. Supreme Court ruled on Monday that, just like individuals, family corporations enjoy religious liberty protected by federal law. That is good for Texas, and it's certainly good for business.
The decision in the Hobby Lobby case confirms, yet again, that this is the court that Chief Justice John Roberts rules. On its final day of the term, the sharply divided court struck a powerful blow for religious liberty — over the vigorous dissent of the court's liberal justices.
To win big cases like Hobby Lobby, the chief justice must, of course, get to the magic number of five. To that end, he can assign the hoped-for majority opinion to himself or to a trusted colleague like Samuel Alito (the author of Monday’s majority opinion) and hope for the best. But at all events, he must appeal to the man in the middle, Justice Anthony Kennedy, the world's most influential jurist.
Bingo. On Monday morning, Kennedy came through as a full-throated member of the Hobby Lobby majority, handing Roberts yet another enormous victory. In his separate concurrence, as the nine justices fought tenaciously over the meaning of the Religious Freedom Restoration Act, a landmark statute, Kennedy elevated the Hobby Lobby battle far above the meaning of the Affordable Care Act and access to contraceptives. He ascended to much broader philosophical ground. He appealed to human dignity. In Kennedy's vision, the free society — including, above all, America's constitutional republic — seeks both to serve and to vindicate basic precepts of human dignity. To Kennedy, that overarching goal lies at the core of the enterprise of judging. Is human dignity promoted or denigrated?
That is not an easy question to answer. Judges (and justices) of good will may and frequently do disagree, as they did on Monday. Some, like Justice Ruth Bader Ginsburg, worry about equality and fairness. That's a serious concern. But to Kennedy, human dignity begins with first principles, including defining who we are as humans. At the core of our humanity is our belief system. Like the founding generation, Kennedy begins not with questions of equity or fairness but with the first freedoms — of belief or non-belief. These are trump cards, overriding governmental policies aimed at serving widely shared (if not universally agreed-upon) public policy goals.
These words from Kennedy's concurring opinion capture his soaring vision: "In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law." That translates into this decision-driving principle: "For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts."
Brought down to the case at hand, this meant that the five members of the Green family of Oklahoma City could seek refuge for their religious beliefs — steadfastly opposing the taking of innocent human life — in a statute passed overwhelmingly by Congress in 1993 and enthusiastically signed into law by President Bill Clinton. That law was broadly worded, and thus family-held corporations (no matter how large) could lay claim to its protections as much as individuals. Publicly held corporations were an entirely different matter. They were, in a Kennedy-esque view, not quite human.
The liberal justices were unconvinced. Surely Congress had not intended to sweep so broadly as to protect for-profit companies, whether family-owned or not. But the man in the middle saw not some impersonal corporate framework, but real flesh and blood. He closed his opinion with this: "Among the reasons the United States is so open, so tolerant and so free is that no person may be restricted or demeaned by government in exercising his or her religion."
That view carried the day on Monday — thanks to America's most powerful voice in the never-ending struggle for human liberty.