But this case was never really about health policy. It isn’t really even about the ACA, except peripherally. This case is about the politics of recognition: it is about recognizing conservative religious claims that (a) contraceptives are different from other forms of health care (an issue the Court somewhat finesses by suggesting that immunizations and so on “may be supported by different interests”), (b) religious people’s “conscience” deserves great deference and priority in the public sphere, certainly a higher symbolic priority than women’s health, and © perhaps most specifically on point, that religion is not something people do on their own time, in their own churches, but rather, is a way that apparently even large for-profit businesses may conduct their affairs—and if they choose to do so, society must find ways to accommodate their “full participation in the economic life of the Nation” (p.46). None of these—neither (a), (b), nor ©—is really a legal claim. These are political claims. But this is high politics, not low politics. These are claims about how our nation is constituted and the place of religion in it.
I think Balkin is wrong, and wrong in telling ways. Some of the errors are of commission, some of omission. Here are a few:
1) Balkin sees this as being about “contraception” tout court, but Hobby Lobby is already paying for 16 of the 20 legally recognized forms of contraception; they only protest the ones that they believe are abortifacients.
2) Note the scare quotes: “religious people’s ‘conscience.’” Balkin can’t even bring himself to acknowledge that religious conservatives are sincere in their protests.
3) The determination to oppose religious conscience — or “conscience” — and women’s health is a completely unnecessary opposition, and thinking in that way does great harm to the body politic. First of all, let’s remember that, as Julian Sanchez points out, women who work for for-profit companies will just end up, as a result of this ruling, getting the kind of accommodation already made for women who work at non-profits. More important, as Justice Kennedy wrote in his concurrence, if you really care about providing contraceptives to women, there are ways to do that that don’t place this burden on the religious conscience. And many of them are probably better ways. By lining up such an unnecessarily radical opposition, Balkin just fuels the secularist desire to punish religious people for being religious.
4) Regarding Balkin’s notion that the SCOTUS decision is making the “claim” that “religion is not something people do on their own time, in their own churches” but rather has a significant public dimension: this is not a claim, it is a historical fact. Religion has always been about far, far more than worship services, a point which the secular left (and right, for that matter) seems congenitally incapable of understanding. The Constitution does not guarantee freedom of worship but rather the “free exercise of religion,” and when religion is truly exercised, actually practiced, it extends into every arena of life.
It is this free exercise that the Constitution guarantees, and that laws like the Religious Freedom Restoration Act are meant to reinforce. It is also this free exercise that the most vocal secularists despise and want to extinguish.