Hobby Lobby: A Victory, So Far Print
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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