Ruth Bader Ginsburg, in a recent interview with Katie Couric,[1]  attacked the majority decision in Hobby Lobby v. Burrwell. Among her logical non sequiturs, one particularly stands out: her claim that Hobby Lobby’s owners cannot “separate [themselves] from the obligations that citizens have” by refusing to pay for abortifacients mandated by administrative ukase. Here is what she said:

Couric: “Some people say there is something troubling about mandating a private company . . .  to do something that is against their deeply-held religious beliefs. What would you say to those people?”

Ginsburg: “When you’re part of a society you can’t separate yourself from the obligations that citizens have.”

For Ginsburg, the Hobby Lobby owners have no Constitutional rights that are being infringed upon; they only face “obligations that citizens have” as a result not even of statutory law but of administrative rule.

Well, if that’s the case, then Ruth Bader Ginsburg should immediately vote to overturn at least three major Supreme Court decisions that are regarded as controlling precedents. They are:

West Virginia Board of Education v. Barnette (319 US 624): West Virginia required students to salute the flag as part of a regular school-day program. Several Jehovah’s Witnesses, a religion which interprets the Commandment prohibiting adoration of “graven images” to include the flag, successfully challenged the rule, which the Court declared unconstitutional. In the course of its opinion, the Court even overruled a 1940 precedent, Minersville School District v. Board of Education (310 U.S. 586), upholding a similar Pennsylvania requirement which an Amish family had challenged unsuccessfully. Would Ginsburg reinstate Minersville?

Wisconsin v. Yoder (406 U.S. 25): In 1972, the Supreme Court overturned a Wisconsin law that imposed compulsory education requirements on children until they attained age 16. Old Order Amish do not send their children to school past eighth grade, and they challenged the Wisconsin law as a violation of the First Amendment free exercise rights. Would Ginsburg arrest the kids and make them high school freshmen?

Sicurella v. United States (348 US 385): In 1955, a Jehovah’s Witness was denied classification as a “conscientious objector” because that religion’s theology allows for war on behalf of “Kingdom interests,” thus meaning he was not opposed to all war, as the Selective Service Act then in force required. The Court overruled the draft board and ordered Sicurella to be classified as an exempt conscientious objector. Would Ginsburg deny Sicurella relief, since presumably the burden to protect one’s country is a more compelling secular purpose than buying an IUD?

Are we to understand that you can “separate yourself from society” when it comes to fighting for your country, mandatory education, and public expressions of patriotism, but not when it comes to buying somebody else’s abortifacients?

No doubt some people might invoke another Supreme Court decision, Gillette v. United States (401 U.S. 437), in which the Court upheld provisions of the Selective Service Act that allowed for draft exemptions for conscientious objectors who oppose “war in any form” but not a particular war (Gillette opposed the Vietnam War).  I find it inconceivable that former ACLU attorney Ginsburg would uphold the Selective Service Act if Congress had included no exemption for conscientious objectors to all wars. If that is the case, would Hobby Lobby be immunized from legal attack if it objected to paying for any contraceptive (since (i) the Administration erroneously lumps contraceptives and abortifacients into one pot and (ii) Hobby Lobby pays for about 16 of the contraceptives on the HHS list)? In other words, did Hobby Lobby not go far enough in its objection?

One of the objections to Supreme Court nominees like Robert Bork, Samuel Alito, and Clarence Thomas was that they were “radicals” who might not respect stare decisis and uphold precedents (read: Roe v. Wade). In light of the Couric interview, should we wonder whether Ruth Bader Ginsburg is a radical who is inadequately committed to 40-70 year-old precedents like Barnette, Yoder, and Sicurrella?

Or, do religious commitments only matter when you are a small, marginal religious community and the issue does not involve sex?

Ruth Bader Ginsburg seems prone to saying outrageous things in the middle of the summer for which she is rarely called on the carpet. In the middle of July, 2009, for example, she told the New York Times how surprised she was about opposition to Roe v. Wade when it seemed clear at the time of the decision that “there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”[2]  Perhaps she should take summers off.

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—John M. Grondelski (Ph.D., Fordham), an independent scholar, was associate dean of the School of Theology at Seton Hall University, South Orange, New Jersey (USA). 

[1]http://news.yahoo.com/katie-couric-interviews-ruth-bader-ginsburg-185027624.html#sapphireChapter0

[Accessed August 1, 2014, 07:00 GMT].

[2]  Emily Bazelon, “The Place of Women on the Court,” New York Times Magazine, July 9, 2009, available at http://www.nytimes.com/2009/07/12/magazine/12ginsburg-t.html?pagewanted=all, quoting incumbent U.S. Supreme Court Associate Justice Ruth Bader Ginsburg, emphasis added.