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Hobby Lobby at the Court, Today Print E-mail
By Hadley Arkes   
Tuesday, 25 March 2014

I had just about decided that I would give up, for Lent, any further writing on those cases on religious freedom moving through the courts. I thought I would take my readers on a break away with me, a sojourn through the landscape unfolded in Fr. George Rutler’s new book, Principalities and Powers, Spiritual Combat 1942-43. But that for next time, for as it turns out, today is the day that the cases on religious freedom and Obamacare will finally be argued before the Supreme Court.  

The families Green and Hahn, the owners respectively of the Hobby Lobby Stores and Conestoga Wood Specialties, have been models of fortitude and faith: they have patiently borne the movement through the courts as they have faced the accumulation of fines massive enough to put them out of business.

By this point, virtually all of the arguments have been sounded in briefs and commentaries, and my readers have probably heard enough from me already. And yet, as I hear the back and forth among professors of law, I detect a certain waning of confidence on the side of the partisans of Obamacare and its mandates – a certain want of surety that a business may be purged of any touch of religious character when it takes a corporate form.  

If nothing else, a business that closes on the Sabbath or offers kosher food would reveal that character. It may be an ebbing of confidence that accounts for why the opponents of the religious have been drawn with such conviction to an argument that would be as inverted as it is implausible: namely, that the Greens and Hahns, in refusing to fund abortifacients and contraceptives, are “imposing their religious views on their employees.” In this upside down view, the religious owners become the oppressors as they object to being made accomplices in acts they regard as deeply wrong.

But it used to be plain to ordinary folks, and especially to lawyers, that there was no coercion here. Lawyers used to understand that, in a liberal order, there was a sharp distinction between the public and the private. The public authority knew clear limits because it respected the domain of privacy: private businesses, private clubs, private colleges had a presumptive authority to order their own affairs according to their own, private criteria. 

Those private entities could be not directed to illegitimate ends – we couldn’t have Fagin’s school of pickpocketry, and a private family that rented its children for pornography may lose custody of those children in the law. It was clearer to the people years ago that the employees of the Greens and Hahns were facing no coercion, no “imposition” of religious orthodoxy, for they were not compelled by law to work for these firms. They were free to leave at any time. 


       Then as now.

But even without leaving, they are perfectly free even now to purchase their own contraceptives and abortions. No law bars that freedom to them.  And neither the Greens nor the Hahns would cast up barriers to that freedom.  It takes the most wondrous leap of imagination – and an imagination serenely untethered from any moral grounding – for professors of law to urge seriously in public now that the employers are “imposing their religious views.”

The critical break came, of course, with the Civil Rights Act of 1964. The federal government crossed a constitutional divide when it claimed the authority to bar discriminations on the basis of race in private inns and restaurants. The law ran well beyond what used to be called “public accommodations,” for it would eventually reach virtually any business beyond a hotdog stand that was open to transactions with the public. We’ve reached the point where decisions on hiring and firing in small businesses, and even small private colleges, may be contested in federal courts.  

Ordinary folks may still have a vivid sense that the Greens and Hahns own private businesses. But many lawyers have come to absorb by now that this privacy has been so penetrated and overborne by regulations that almost any claim of “discrimination” or private choice on the part of an owner can be called into question.

It should have stirred no surprise then, a few years ago, when some distinguished lawyers assumed that the same laws that restrained private employers would protect quite as well a teacher fired in a Lutheran School. There was surprise and celebration among the religious when the Supreme Court unanimously sustained the right of Hosanna-Tabor Lutheran Church and School to respect its own criteria for its ministry.   

Once again, the argument was made that religious views were being imposed. But the estimable Richard Epstein, in his new book, The Classical Liberal Constitution, has made anew the elementary point that no employer “can tell workers what to do. . .so long as they have the right to quit their jobs.” Epstein favors accommodations with the religious in private employment, but his argument would point out that so many cases, involving claims of religious coercion, would simply disappear if the law returned to the axioms of a liberal order in respecting spheres of private right. 

But we are simply reminded here – on the day of Hobby Lobby – that the religious may find the stronger defense of their freedom in the principles of constitutionalism, which protect us all.

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. 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 (16)Add Comment
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written by Gian, March 24, 2014
The Civil Right Act of 1964 could be regarded as unconstitutional only from the viewpoint of property absolutism of Mises and Rand etc. But that is not the viewpoint of the Catholic Church, I believe, which maintains that the State may adjust the property according to the considerations of the common good.
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written by Joe, March 25, 2014
I heard a clear explanation of freedom to worship ( a one time event) and freedom of religion ( the way to live according to one's faith). Also there was an explanation that in the sight of the law and constitutional rights a business is treated and has the same rights as an individual. Enlightening to say the least.
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written by Chris in Maryland, March 25, 2014
Beautifully written.

May God's will be done today.
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written by schm0e, March 25, 2014
"Freedom of worship", and all those other freedoms that rightly fall under the righst to life, liberty, and the pursuit of happiness - for a sane and moral people - cannot be "decided" on one, two, or any number of court cases, because they are part of the DNA of the USA. Courts may "interpret" them, rightly or wrongly; but their existence was settled upon their declaration.

They will not be "decided" by a sudsidiary body any more than a man may "decide" that he is a woman.
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written by grump, March 25, 2014
Good column. Never thought I'd see the day when an American would be forced to bake a cake for perverts. Leftist judges are now overturning voter-approved pro-life/traditional value laws with increasing fervor.

Democracy -- rule by the people -- sounds like a fine thing. We should try it sometime in America. As the late Edward Abbey wrote, "The ideal society can be described, quite simply, as that in which no man has the power or means to coerce others."
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written by Dawn, March 25, 2014
This is refreshing to see the law can actually protect our rights to our faith. Many times I see the law as self serving to the lawyers. The more abstract and litigious the law is the more likely a lawyer has to be hired at 200. to $300.00 an hour to clarify our rights to believe in our faith. Where did discrimination laws become the right to martyr the christians for their beliefs
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written by barb norris, March 25, 2014
If one chooses to work for a private entity, they choose to follow the mission and values of the company as per job description. Working for a Catholic institution, an employee must accept the doctrine of the parent company. If said employee does not agree with printed company statement, then why would the job be accepted? I once attended a college where one was required to take a religious class. Not my chosen religion, but I wanted to attend this school. So, guess what? I took a religion course and am still alive to talk about it. So simple, so simple!
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written by CCR, March 25, 2014
Read the Book of Esther. The forces of Progressivism are preparing the gallows for Christians. In the end Progressives will take the place of their intended victims.
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written by Manfred, March 25, 2014
Mr. Green has some jiu-jitsu at his disposal: simply lay-off his 16,000 full-time employees in the event he loses this case in June with the threat to permanently close all 560 stores. Then take out ads in local papers across the Country featuring interviews with his employees and the hardship the U.S. Government has imposed on them. This, of course, just in time for the mid-term elections.
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written by Myshkin, March 25, 2014
Hi Dr. Arkes! It's that darn Commerce Clause again. What doesn't the Congress have the right to regulate under that Constitutionally enumerated power? Even the rights guaranteed by the Bill of Rights seem liable to its action!

Yes, government by those without self-control erodes liberty from the citizens ... and concentrates it in the hands of the rulers, constituting an oligarchy. Yes we still have some democracy left, but it's fast slipping away into the hands of elite government oligarchs.
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written by Jack,CT, March 25, 2014
Another Example of Why You Are My Favoritey Writer Here!
Thanks For A Fantastic Article!

I Watched as those poorly educated (to the facts)
stood out in the rain and snow.
Hobby Lobby has; Always offered health care long
before Obamacare HAS offered 16
TYPES OF BIRTH CONTROL AND THIS
INCLUDES AT LEAST ONE MORNING
AFTER PILL!

So is it just not enough or a reason to be in DC

getting wet!
I see this kind of stuff and it reminds me of
social "Amway"! the only difference is they are
selling souls for politics.

God Bless the Green Family may the Supremes have the wisdom!
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written by Gordon Giampietro, March 25, 2014
As usual, Hadley Arkes is exactly right to trace the intrusion into private business to the Civil Right Act. I would go even farther back (and I assume Prof. Arkes would too) to the original sin of slavery. Absent slavery, there might have been a vibrant federalism that allowed for differences of opinion to exist side by side until the truth will out. Absent slavery, there is no racial spoils system, no calls for diversity --which is code for relaxed standards (moral and intellectual) -- and no eye-rolling when appeals are made to "states rights." In short, because we denied blacks the fundamental human right to freedom we sowed the seeds of our own loss of freedom. The Hobby Lobby cases - if we lose - will represent the end of the American experiment.
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written by Jack,CT, March 25, 2014
Well Gordon;let us not go
to far.
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written by Tony Esolen, March 25, 2014
I agree wholeheartedly with Gordon above. Slavery is America's original sin, and we are still paying for it, mightily. Because of the after-effects of slavery, we gave up on freedom of association -- a crucial freedom. It explains why it is even conceivable that somebody could take a private organization, like the Kiwanis or the Jaycees, to court, to sue them to change their rules for membership. That should be appalling to people who love liberty. Meanwhile, the people who suffered the indignities of post-slavery America, the blacks, had their Civil Rights train hijacked by wave upon wave of self-absorbed "victims" -- and never bothered to notice that they were helping to destroy black communities in the process.
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written by Cathy Ruse, March 26, 2014
Imagine a distinguished elderly black couple negotiating the Supreme Court steps in the snow after argument yesterday, approaching the scrum of reporters and saying: "We are Mr. and Mrs. Green and we are an American success story. We started a company making picture frames in our garage and through hard work and good employment practices we have built it into a thriving business. Today, we ask for nothing from our government but respect. President Obama, do not make us choose between following your law or following our God."
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written by Jack,CT, March 28, 2014
Cathy;I have NO IDEA what your point is and
what does 'Race" have to do with it?

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