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Hobby Lobby: A Victory, So Far Print E-mail
By Hadley Arkes   
Tuesday, 16 July 2013

We are still absorbing, weeks later, the shock that the Supreme Court administered to the country on June 26, with its decisions on marriage. Some friends took heart, though, from a bit of offsetting news only one day later. On June 27, the federal court of appeals in the Tenth Circuit (in Colorado) brought in a favorable judgment, at least in a first phase of litigation, for a family seeking to preserve its religious freedom against the demands of Obamacare.   

In Hobby Lobby v. Sebelius, the Green family was not litigating exactly on behalf of religious institutions.  The Greens were seeking to vindicate, rather, their freedom to honor their own Christian principles in the running of their own businesses, the Hobby Lobby chain of “craft stores,” and Mardel, a chain of Christian bookstores.  The Greens offer a program of health insurance to their employees, and under Obamacare the Greens would have been obliged to cover, in their plans, contraceptives and abortifacients.

The Greens asserted that they could not do that without violating their religious convictions – oops, that’s not the way the Court put it in sustaining their claims, and therein lies a story.  Judge Tymkovich, writing for the Court, said that the obligation set down in the law violated the “sincerely held religious beliefs” of the family.  

The victory was limited:  The Court agreed that the Greens had “standing” to maintain their suit, even though they were representing the interests of a “corporation” and not a religious institution.  Even the judges who were in partial dissent agreed that the Greens had standing, and that they had a chance at least of prevailing in their suit – though the same judges thought that the arguments made on behalf of the Greens would eventually, and clearly, lose.

For the sake of bringing the matter this far, and waging the argument over religious freedom, we have our friends to thank at the Becket Fund for Religious Liberty, and especially to their accomplished counsel, Kyle Duncan.  

But if this was a victory, it was a melancholy win, revealing also the edge that cuts against the religious in this country. According to Judge Tymkovich and his colleagues, the Greens assert, among their “sincere beliefs,” a “belief that human life begins when sperm fertilizes an egg.”  A “belief”?  That would surely come as news to the authors of all of the texts in embryology, who report that point as one of their anchoring truths. 

The Greens also “believe” that they would be “facilitating harms toward human beings” if they helped to provide drugs that prevent implantation on the uterine wall.  Since the blocking of implantation does kill the nascent life, what is the part that belongs here to “belief” rather than truth?  

As the readers of this column have read me arguing, day in and day out, the Catholic position on abortion does not involve appeals to “belief” or revelation.  That position has been a weave of the evidence of embryology joined with the force of principled reasoning.   

John Courtney Murray pointed out years ago that, in this kind of confusion, Catholics were gently backing into a libel of their religious convictions. They were coming to accept the premise that their moral views were founded on “beliefs,” propositions that could not be tested finally for their truth or falsity.  It is only because premises of this kind have been absorbed so widely that the Kennedys, Bidens and Cuomos could grandiosely forebear to enact into laws their “beliefs” on abortion.

That was precisely the problem caught by Pope Francis just recently in Lumen Fidei, on that state of mind in which:

faith was. . .understood either as a leap in the dark. . .driven by blind emotion, or as a subjective light, capable perhaps of warming the heart and bringing personal consolation, but not something which could be proposed to others as an objective and shared light which points the way.

In Hobby Lobby, the Court cited the Thomas case on conscientious objection from 1982.  Thomas, a Jehovah’s Witness, was willing to work in a foundry turning out metal for use in tanks. But he drew the line at working on the turrets for the tanks.  It was hard to see the difference in principle, but the Supreme Court would not stoop to quibble. It didn’t matter, said the judges, if the line was “logical, consistent or comprehensible to others in order to claim First Amendment protection.” 

With this reasoning in place, it is hard to see the ground on which to challenge the “sincere beliefs” of those who were convinced that widows should be burned on the funeral pyres of their husbands.  Or more recently: On what ground would we quibble with those people who “sincerely believe”  that infants in the womb do not count yet as “human”?  The judges in the past refused to accept these claims of belief when it came to homicide. My own suspicion is that, when it comes to the Greens and Christians, the judges will discover anew that once familiar ground.

Our friends litigating freedom feel pressed to argue within the grooves of “sincere beliefs,” because they are the terms that the courts have confirmed and the judges recognize. The Greens are a generous, loving family, who deserve to prevail. But there needs to be another way of making the argument in the courts, and that is our task to come. 

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
 
 
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Comments (10)Add Comment
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written by suzuki, July 15, 2013
Excellent post, Dr. Arkes! Your posts are always pertinent and hopeful ... even in the dark days like the present!
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written by Ken Colston, July 16, 2013
Yes, sincere belief is a weak ground, and definitely not Catholic, and that is why the religious liberty campaign, promoted by some bishops, is similarly doomed. Jehovah's Witnesses, if they should have hospitals, might object to blood transfusions on religious liberty grounds. Such an absurdity will not do, and thus the medical truth of the evil of contraception must be taught vigorously.
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written by Seanachie, July 16, 2013
Thoughtful piece, Hadley...seems this Court looks upon facts (empirical evidence) as inconveniences in today's world of "Newspeak" and "doublethink" relative to the creation and value of human life. The same is true of the "Choice" crowd. Both parse, re-interpret, and misinform re: human reproductive science, despite their absurdly convoluted grasp of the subject. A fertilized egg is not the beginning of a human life and black is white...or, at least that is what they would like people to blindly accept and believe. Critical thinking is discarded and replaced by "group-think" nonsense. At some point, the nonsense, if sufficiently repeated (especially by authority figures), will become the new "reality".
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written by Layman Tom, July 16, 2013
Dr. Arkes, forgive my ignorance, but isn’t belief the lynchpin of the actual argument? I understand well the biology at issue, but isn’t dependence on that alone rife with problems? The culture of death will admit to the zygote being the beginnings of the human form. Yet they rely on viability being the determinant of what is a human. To them, an “unviable mass” of human cells is dependent on the mother for the maintenance of life. Without our belief that that zygote/mass/embryo is fully human and endowed by the creator with all the rights of a human being, how can we prevail?

The argument I have had over and over with pro-death people is based on nothing more than this. Eventually, it devolves into what I believe vs. what they believe. What I believe is that God makes a baby and that that baby has a soul from moment one. If they fancy themselves believers, they will get sideways trying to beat me down rather than have to go on record and venture a time for soul distribution. More often, they are atheists or agnostic and will try to discount my naïve superstition. In their mind it is a baby when it can live outside the womb at best or when it is doing so at worst. I say try, incidentally, because they cannot beat me down or discount me. I have the high ground and they know it.

That high ground is really all we have in the end. It is the same high ground from which the founders drafted our constitution and bill of rights. It would be great if we had other forms of discourse and logic which could be brought to bear, but the death crowd will not be swayed by it. This is evident in the Texas case. Biological proof that the fetus feels terrible pain at twenty weeks is not good enough to deter them. Ongoing medical advancements that have reduced the viability from twenty eight weeks down to twenty four weeks (sometimes earlier) does nothing to affect their drive for unfettered abortion rights up to and even during birth.

I’m sorry if I’m impertinent, but I just don’t see any way out of this other than holding the high ground win or lose. Please tell me I’m short-sighted. I hope, not being a lawyer, that there are tactics that I’m not seeing. I live in the same city as the Greens. I don’t know them personally, but I have a few mutual acquaintances and have followed the case both in the national and local media. I am 100% certain that they will not relinquish the high ground. If they lose, they will fold up shop rather than comply. There will be thousands of unemployed workers who previously had a good job with a company that cared deeply about its employees. There will be tens of thousands of other businesses hurt as well. All in the name of “progress” brought to us by the death culture.

Peace
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written by Mark, July 16, 2013
@Layman Tom You said, " If they lose, they will fold up shop rather than comply." And of course, this is a no win situation. They (we) will be forced to go along with an evil agenda or we will not be able to buy or sell. The time of the antichrist is at hand as foretold in the Book of Revelation. Well consider us lucky to be living in such times for it is in such persecutions that great saints are made.
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written by Hadley Arkes, July 16, 2013
I’m afraid that I’m catching up a bit late to these notes and Layman Tom’s queries. No I don’t think he is being the least “impertinent” in raising these questions, but my own sense is that he has a couple of critical points confused. Whether the offspring of human beings is anything other than human beings is not a matter of “belief.” We know now, in a way that Aristotle and even Aquinas could not, that everything that defines us genetically is something we had in our first moments as a zygote, no larger, as the saying went, than the period at the end of this sentence. It is now clearer than it was to Aristotle that the human embryo does not undergo a change of species, turning from a lower animal into a “rational” animal. These are not matters of belief. If a woman is pregnant, there is no question that a living being is present, powering and integrating its own growth. These are not in the domain of “beliefs.” And if there is a living thing there in a pregnancy, there can be no question that it is anything but a “human being.”

But it may require our religious sense to help explain that sense of things, held by many ordinary people, that the killing of a five-year-old is not a less serious homicide than the the killing of a 50-year-old. Or why we think that the taking of a human life is a portentous thing at any age, at any stage of development. It matters profoundly that some us look even at a small child, or at an adult who has broken his life and say, “as diminished as he appears, he is made in the image of something higher.” That is the part that has to be explained to people as we explain that our law persistently depends on a deep reservoir of understanding cultivated in our Jewish-Christian tradition. But the whole thing should not be reduced to a claim of mere “beliefs”—most notably, claims about the human standing of the living child. That critical points, marking the predicate, or the beginning points, for our moral judgments are not matters merely of “belief.” To concede that realm to mere “belief” is to short-circuit the moral argument: There is no need to give reasons and test the “justifications” for the killing of an unborn child if the other side is permitted to close down the discussion at the very threshold by insisting that it is all a matter merely of “belief” that anyone is being killed in these surgeries.


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written by Layman Tom, July 17, 2013
Dr. Arkes,
Thank you for responding. I was perhaps guilty of measuring once and cutting twice. Upon re-reading your piece, and your reply, I think I gather what you meant a little better. To me the word belief is every bit as much a noun as a verb. Yes “I believe”, but more importantly, I have the wonderful gift of “my belief”. We will surely lose in the end if our defense is due to and based on our side believing something. As you say, many folks belief all sorts of things and those things are judged accordingly in light of the proper interests of society under the law. My questions came from the other sense of the word. In my mind, our belief is part of the foundational ideals upon which our country, its laws and jurisprudence system are based. I think that is what you were getting at in the second part of your reply.

Yes. There are undeniable, scientific facts concerning what is wrought by conception. There are concrete Judeo-Christian principles underlying our unalienable rights. And we DO have a responsibility to use these facts to fight for the rights of the unborn as well as the first amendment rights of religious organizations, corporations and individuals. We do need to do better at educating people and explaining these things so we can use them effectively. I agree that falling back on what we believe (verb tense) as the only defense is a weak position. Rather, we should stand on our belief (Noun tense) and start being more confident in the battle. I just wish I knew what to do to stem the tide, or what strategy would prevail. In the end, we all know who’s going to win; but in the meantime, it would be nice to carry the day once in a while. It can be pretty frustrating at times, especially when the other side is seemingly having its way with us. Maybe that’s why I jumped in so quickly yesterday.

Anyway, thanks again.

Peace
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written by Nancy D., August 17, 2013
I suppose once you start with the premise that religion is evolving and thus with it the moral beliefs of those of a particular faith group, you will end with every man becoming a religion onto his own as we decide what is good and evil, due to the sin of pride. There are Judeo-Christian principles underlying our unalienable Rights, for our Founding Fathers recognized that our unalienable Rights have been endowed to us from God, the purpose of which can only be what God intended. The issue is, since it is true that our Founding Fathers would not have protected Religious Freedom if they did not believe religious morality would serve to complement and enhance the value of the State, when religious morality has evolved to a point where those who profess to be Judeo-Christian are no longer following The Word of God, Who Was In The Beginning, Is Now, and Forever Will Be, how can we expect Religious Liberty to continue to enhance the value of the State?
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written by Nancy D., August 17, 2013
No, I am not spam.
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written by Nancy D., August 17, 2013
Since it is true that our Founding Fathers recognized that our unalienable Rights have been endowed to us from God from the moment of creation, not the moment we are brought forth from the womb or delivered by Caesarian section, abortion is a violation of both our Religious Liberty and The Constitution, which serves to protect and secure our unalienable Rights that have been endowed to us from God, and thus can never be relinquished even if we so desire.

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