We generally consider the First Amendment to be a shield against government interference in our speech and worship, but what happens when the First Amendment is weaponized in order to harm others?
“You’re seeing an increasing tendency to use the First Amendment or First Amendment-like arguments by conservatives as a way of resisting various forms of regulation or progressive regulation,” said Samuel Bagenstos, a law professor at the University of Michigan Law School who oversaw civil rights at the Justice Department in the Obama administration. “The arguments that might have in the past come under the heading of ‘property rights’ or ‘freedom of contract’ now are coming under the heading of ‘free speech’ or ‘free association’ or ‘religious freedom.’”
That phenomenon includes Hobby Lobby v. Burwell, the 2014 case in which a corporation successfully claimed its religious rights were being violated by having to cover contraception on its employee insurance plan. And this term, it includes the follow-up to Hobby Lobby, Zubik v. Burwell, which could take religious refusal to a whole new place. The plaintiffs, who are nonprofit schools and charities with religious affiliations, already don’t have to pay for contraceptive coverage. But they argue that what the Obama administration calls an opt-out form is actually conscripting them in helping employees get “abortion pills,” known to most people and the medical community as birth control. Citing the Religious Freedom Restoration Act (RFRA), a law that sought to strengthen First Amendment protections, the groups also object to even contracting with an insurance company that is giving other people contraception.