Ginsburg's Misfire in Birth Control Case Dissent

       Chief Justice Charles Evans Hughes famously observed that a dissenting opinion amounts to “an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” True, but a dissent at the Supreme Court also serves two immediate purposes that, somewhat paradoxically, are at odds with each other.
       Before a decision is final, a justice’s dissenting opinion amounts to perhaps one last chance to persuade one of the justices in the tentative majority to switch sides. To serve that purpose, the dissent must be forcefully argumentative, with dire warnings of the consequences of ruling according to the justices’ original vote in conference.
       Once the decision is final, the justice wants the public to hear those same forceful arguments for ruling the opposite way. Yet the dire warnings of slippery slopes and unintended or unacceptable consequences may disserve the dissenter’s purpose by providing a road map for the very results that the dissenter fears and hopes will not come to pass.
       Nothing better illustrates the dilemma than Justice Antonin Scalia’s dissents in the Court’s two landmark gay rights cases: Lawrence v. Texas (2003) and United States v. Windsor (2013). Both rulings, Scalia said in dissents that he read from the bench, set the country on an inevitable path toward recognizing a constitutional right for same-sex couples to marry. And over the past year one after another judge in federal and state courts have quoted Scalia’s dissent as authority for doing exactly what he feared.
       If there is a lesson in Scalia’s example, it apparently was lost to some extent on Justice Ruth Bader Ginsburg as she dissented this week [June 30] in the Court’s final decision: Burwell v. Hobby Lobby Stores, Inc. Ginsburg led the four dissenters from the ruling to grant some religiously motivated employers an exemption from the Obama administration’s controversial birth control insurance mandate.
      In dissenting, Ginsburg declined to accept the majority’s insistence that the ruling was a limited one. Instead, she warned – just as Scalia had done in the gay rights rulings – of broad implications in the legal rationale and ominous results down the slippery slope that the ruling supposedly opens up.
       Ginsburg effectively marshaled the legal arguments against the majority’s ruling in what one of those in the majority, Justice Anthony M. Kennedy, aptly called “the respectful and powerful dissent.” The Religious Freedom Restoration Act (RFRA), relied on by the majority to exempt religiously motivated companies from the birth control mandate, was surely not contemplated by Congress to protect some supposed freedom of religion for corporations, however structured or whatever size. And the Court’s previous jurisprudence signaled that religiously motivated employers had no right or privilege to impose those views on their employees.
       Without stopping, Ginsburg went on to suggest consequences far beyond the birth control mandate. “Can an employer opt out of coverage for blood transfusions, vaccinations, antidepressants, or medications derived from pigs, based on the employer’s sincerely held religious beliefs opposing those medical practices?” Ginsburg said, in the bench announcement of her opinion.
       “What of the employer whose religious faith teaches that it is sinful to employ a single woman without her father’s consent, or married women with her husband’s consent?” Ginsburg continued. “Can those employers opt out of Title VII’s ban on gender discrimination in employment?”
      Ginsburg noted that those examples “are not hypothetical.” Later, she surmised that the majority’s suggestion for the government to pay for birth control coverage for employees opened the door to an employer’s refusal on religious grounds to pay women equal pay with men. Such claims, she said, “have been made and accepted as sincere.”
      In his summary of the majority opinion from the bench, Justice Samuel A. Alito Jr. anticipated Ginsburg’s dissent and dismissed all of the warnings as unrealistic. “We do not hold,” Alito said, that corporations can opt out of generally applicable laws, that corporations have free rein to impose costs on the government, that claims involving vaccinations or transfusions are likely to succeed, or that religious motivations could be used to justify invidious discrimination.
      The results of the ruling, even within its own terms, remain to be seen. Ginsburg sees no reason to assume the exemption will remain limited to “closely held corporations,” but the majority finds it unlikely that a publicly held corporation would claim any exemption. The majority anticipates that employees of companies that reject the birth control mandate will get coverage one way or another – from the government or from the accommodation that the administration has crafted for religiously affiliated nonprofits, such as colleges and charitable organizations.
      Ginsburg is also right to suggest that nothing in the opinion prevents an exempted employer from refusing to cover the cost of any form of contraception, not just the four contraceptives that the Hobby Lobby family find objectionable. Alito did not address the point, but at the least the majority accepted the government’s legitimate “compelling” interest in ensuring the availability of contraception for women.
      The ruling surely opens the door to more religious litigation, but experts doubt how far those claims will go. Ginsburg might have served her own views better by stressing in dissent not how far the decision might go, but how narrowly lower courts ought to read it.