To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Kara Loewentheil’s The Satanic Temple, Scott Walker, and Contraception: A Partial Account of Hobby Lobby’s Implications for State Law. Ms. Loewentheil, a Research Fellow and Director of the Public Rights/Private Conscience at Columbia Law School, discusses the extreme interpretations of the Supreme Court’s Hobby Lobby decision that appeared in the media right after the decision was announced and tries to clarify the scope of the decision. Ms. Loewentheil writes:
In this article, I demonstrate that Scott Walker’s Administration and The Satanic Temple have more in common than it might superficially appear. In fact, there are three common threads that tie their seemingly diametrical efforts together. First, both Scott Walker’s Administration and The Satanic Temple read Hobby Lobby too broadly. Rather than creating an era of religious exemptions on demand, Hobby Lobby should be read to have a limited impact on state and federal law, even as persuasive authority. Second, both Scott Walker’s Administration and The Satanic Temple fail to appreciate the continuing relevance and impact of many other state and federal laws that continue to provide protection for reproductive rights, including contraceptive access. Third, Scott Walker’s administration and The Satanic Temple share a common strategy of attempting to use claims of religious objection to regulation affecting women’s reproductive rights as a tool for political mobilization of their respective—and antithetical—political communities. In this, however, they are closer to the mark: Hobby Lobby does open up new possibilities for claims of exemption. Politically conservative exemptions have been well-represented in the social, political, and legal discourse around the Hobby Lobby fallout. But what has been less appreciated is that however open the regime is for culturally conservative religious objections, it is equally open for progressive religious objections as well.
In tracing these three common threads between Scott Walker and The Satanic Temple, the purpose of this article is both analytic and descriptive. Analytically, it seeks to unearth the serious point behind The Satanic Temple’s seemingly facetious accommodation campaign: conservatives do not have a monopoly on accommodation. Progressives, too, can look to religious objection claims under RFRA as a means of effecting change in the legal system. For these efforts to be effective, however, we have to be clear— descriptively—about what Hobby Lobby does and does not do.
As the courts continue to hear cases regarding the implications of Hobby Lobby (such as Wheaton College v. Burwell), Ms. Loewentheil’s contribution continues to be timely and insightful. Give it a read today!