Hobby Lobby and the equality of consciences

A former student sent me this link to an essay in The Atlantic: Will the Roberts Court Follow Its Own Religious-Freedom Precedent?

The author, constitutional law professor Garrett Epps, argues that because the Roberts court has upheld the principle that “when government gives benefits to individuals, and the individuals pass on the benefit to religion, no dissenter is injured, so there’s no [constitutional] violation,” the court needs, for consistency’s sake, to hold that Hobby Lobby suffers no constitutional injury when the government requires it to provide insurance coverage that would allow employees to use contraceptive techniques to which Hobby Lobby owners object on religious grounds. The likeness between the situations doesn’t look as airtight to me as it looks to Epps, so I think the Roberts course could wriggle away from the precedents Epps cites with less hypocrisy than he wants to hang on them. But this is the crux of Epps’s argument:

Many taxpayers, religious and non-religious, object deeply to government aid to Christian schools, but legally, their outraged consciences are not injured by government funding that flows to those schools as a result of “independent choice.” […]

That’s not my rule; it’s the Court’s. And if the conservative majority now says that Hobby Lobby actually can dictate to its employees, they will look like hypocrites.

That’s because to assert a right to control employees’ private choice will be to hold that religious people—or, even more ominously, some favored religious people—are more easily injured than others, that their free-exercise rights trump those of their employees. The Court has insulated benefits to religion from veto by objecting citizens; now the religious want the right to veto on religious grounds benefits that flow to others. All consciences are equal; but some are thus more equal than others.

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