When did the First Amendment become so controversial? The centrist U.S. Supreme Court, which ruled unanimously on roughly two-thirds of the 67 cases it decided this term — the greatest share of 9-0 cases in at least 60 years — remains hopelessly divided on some of the country’s bedrock freedoms.
But Americans can take heart that the court’s 5-4 rulings are consistently breaking on the side of liberty and against government restrictions on free expression, free association and the free exercise of religion.
Of course, you wouldn’t know it from the reaction to Monday’s 5-4 decision in Burwell v. Hobby Lobby, a narrow ruling with limited ramifications for precious few Americans.
Hobby Lobby, an arts and crafts company privately held by a Christian family, objected to the Affordable Care Act mandate that its medical benefits cover some forms of women’s contraception the owners considered abortifacients, such as the “morning-after pill.” The company’s health plan still provided its female employees with more than a dozen forms of contraception, including birth-control pills and contraceptive patches and rings, but Hobby Lobby’s owners oppose abortion on religious grounds. Despite the Religious Freedom Restoration Act’s limits on government interference in the exercise of religion — to say nothing of the First Amendment’s guarantees of the same rights — the Obama administration argued that for-profit companies have no religious rights. (At least the administration is consistent; it has held that companies have no free-speech rights, either.)
Far from ruling that all companies can opt out of providing birth-control coverage to women, the court declared that closely held, family-run companies do indeed enjoy First Amendment protections of their religious rights, and that the Affordable Care Act infringes on those rights. The practical effect of the decision: some women now might have to pay out of pocket for some forms of contraception — the court said the government could step in to pay for procedures and drugs that employers won’t cover on religious grounds.
The First Amendment was crafted to create a pluralistic country of tolerance, and to protect the rights of the minority from the tyranny of the majority. Where is the tolerance for a business that objects to paying for four of Obamacare’s 20 FDA-approved contraceptive methods?
In another 5-4 ruling Monday, the court in Harris v. Quinn protected the First Amendment rights of hundreds of thousands of independent home health care workers and family members who receive Medicaid payments to tend to patients. Those individuals had been compelled under state laws to pay dues to unions, even if they didn’t want to join and didn’t support the union’s political activities. This type of coercion is an obvious infringement on the First Amendment, putting the interests of groups over the rights of individuals. These workers no longer will have to pay union dues if they don’t want to.
Individual liberties are not partisan issues. Thankfully, the court still understands that — barely.