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Hobby Lobby: Joy – and Disappointment Print E-mail
By Hadley Arkes   
Tuesday, 01 July 2014

The story is a told of a student who was delivered to Oxford from a former colonial dependency of Britain. There was some concern that the tradition of cannibalism had not been extinguished from his tribe.  But the point of assurance was conveyed: He never ate meat while traveling abroad. The people around him could be grateful for this news, but they could hardly have been cheered by the principles on which their safety had been assured.

I’m afraid that I had a comparable, mixed reaction yesterday, a wondrous day of celebration at the Supreme Court in the Hobby Lobby case.  “Oh Frabjous Day, Callooh! Callay! The Green family, the Protestant owners of Hobby Lobby, and the Hahns, the Mennonite owners of Conestoga Wood Specialties, were delivered from the mandates of Obamacare. They would not have to fund, for their employees, a “medical” insurance that included abortifacients. 

And the case played out as some of us had expected. The Court invoked the Religious Freedom Restoration Act (RFRA) to insist that the government use “the least restrictive means of furthering [a] compelling interest” when it came to “burdening” religious freedom. The Greens would absorb fines of $1.3 million per day or $475 million per year for not complying with the federal mandates.  If that didn’t amount to a “substantial burden,” said Justice Alito, “it is hard to see what would.”  

As it turned out, the federal government already offered arrangements to provide contraceptives (and presumably, abortifacients) to employees in religious, non-profit corporations that are not obliged to provide these devices.  It would seem an invidious discrimination to withhold the same benefits from a closely held, private corporation where the owners have the same religious and moral objections to abortion.  

Unless of course there is something in the character of a “for-profit corporation” that bars a moral and religious perspective.  But as Justice Alito aptly points out, corporations are ensembles of persons, made for the purposes, including the moral purposes, of persons.   That was a point at long last worth making in the annals of the Court.

Yes, there were many things to be celebrated on Monday at the Court.  But some of us could not be exactly cheered by the terms of principle on which these benign results were delivered. The decision rested on RFRA and the special protections offered to “religion,” and yet the Court cannot explain what constitutes a “religion.”


        Justice Ginsburg embraces President Obama

In the style of old, “religion” was reduced simply to claims of “belief” held “sincerely.”  The Greens professed to “believe” that human life begins at conception.  That is an anchoring proposition in the textbooks on embryology, but it was reduced here to a mere “belief” – as indeed religion itself was reduced to mere “belief,” without a ground of reason.  

Justice Kennedy, concurring, said that the case involved “the right to believe or strive to believe in a divine creator and a divine law.” But surely Kennedy knows that the Court  has long accepted the religious claims of people who have denied the existence of God and of divine moral laws.

In that case, there was real point to the challenge made by Ruth Ginsburg in dissent. Why wouldn’t the Court permit the same release from the obligations of law to employers who objected to “blood transfusions (Jehovah’s Witnesses). . .medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus).”

Justice Alito insisted that these issues would have to be handled on a case-by-case basis, but it was not exactly clear as to the principles that would govern the judgments in these cases.  He conceded that the Court had rightly refused to honor the religious claim of an Amish farmer who had objected to paying social security taxes.  When “beliefs” ran up against deep commitments of the law, in vast programs of expenditure, the honoring of  religious exemptions could “lead to chaos.” 

But that was precisely what Justice Scalia had warned of years ago in Employment Services v. Smith (1990), the case that led to the enactment of RFRA. John Paul II had warned against the “subjectivizing” of “conscience,” and Scalia anticipated that “each conscience [could become] a law unto itself”:  “conscience” could be detached from objective moral norms, as religion itself could be detached from the “logos,” from reason.

The Court explained that contraceptives could be provided by the government without impairing the religious freedom of the Greens. But it left unchallenged the deep fallacy – and moral leap – in Justice Ginsburg’s opinion. For Ginsburg, the “right to contraception” did not mean merely the right to purchase contraception without an undue interference of the law.  Nor did it mean merely the right to receive contraception and abortion funded by the government.  It was nothing less than a right to have what she regarded as a public obligation borne by a private person at his own expense – even when it made him an accomplice in what he regarded as an evil.

Justice Ginsburg pointed out that the holding of the Court could rescue  those people who refused, on religious grounds, to bake cakes or take photos at same-sex weddings. That was a prospect she regarded with deep alarm.  For others of us, it was a ray of hope emanating from this case.  But those good things could be accomplished now only if we did not look too closely at the reasoning that would bring them to us.

 
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 (19)Add Comment
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written by Mr. Levy, June 30, 2014
Thank you, Prof. Arkes, for your truly excellent analysis.

In this area of law, as in nearly every area of life, we no longer have the language to describe ourselves. Uttering truths would be too much to expect now. We should be content to hear slogans and cliches, were they based on the Constitution, the common law, and the Bible. Instead we hear slogans of slogans, cliches of cliches - not taken from our own sources but from more recent continental philosophers and "social scientists," contemptuous of religion, republicanism, and even reason.

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written by Gian, July 01, 2014
It has been argued in the pages of The Catholic Things itself that the owners of Hobby Lobby felt it their religious duty to provide their employees with medical insurance. I except from the article published
"Either they must acquiesce to the HHS mandate and materially cooperate with the termination of nascent human life, and thus violate their conscience and what they believe is a clear command of God (Psalm 127:3), or they must cease offering health benefits to their employees, and thus violate their conscience and what they believe is a clear command of God: “But if anyone has the world’s goods and sees his brother in need, yet closes his heart against him, how does God’s love abide in him? Little children, let us not love in word or talk but in deed and in truth.” (2 John 3:17-18)"

Leaving aside the truth of the claim ("religious duty to provide medical insurance"), is not precisely the same argument given by the Catholic bishops to argue for Obamacare?

So, the private sector must be applauded and facilitated for arguing precisely the same thing as the Catholic bishops who were criticized in no uncertain terms when they argue that the State is obliged to provide medical care to all? I think the Catholic Thing is not being consistent.
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written by Michael Paterson-Seymour, July 01, 2014
Gian
It is not the same argument at all. A Muslim may well believe he is obliged to pay Zakat, but strenuously object to its being levied by government.
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written by Sue, July 01, 2014
He who pays the piper calls the tune. If it is "Obamacare", then it is Obama who will decide what is medical care. It was foolish of the USCCB and their gaggle of faux-life organizations to shill for Obamacare in the form of the Stupak amendment. That is the only reason the Church in America is in this rut.

Let USCCB admit that and offer a Fortnight of Penance to American Catholics for having sold them down the river.

Pope Benedict was right about the inherent weakness of a bishop's conference vs the individual bishop and should know, having experienced the national German bishops' conference under Hitler. Now it is up to each individual bishop to take up his own cross.
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written by Myshkin, July 01, 2014
Yes, the Hobby Lobby decision is a mixed bag. Once again, 5 justices show that jurisprudence is not synonymous with prudence. Pragmatistic reasoning seems the best they can do.
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written by Manfred, July 01, 2014
This is an excellent analysis, Dr. Arkes, and it will be printed and kept in my files. As you point out, Hobby Lobby is owned by Protestants, and Conestoga is owned by Mennonites. Yet, both "went to the mat" in order to stand by their Christian (Catholic?) beliefs. Contrast this, as another site does, with Georgetown University, Notre Dame University and the Archdiocese of New York, all of which provide not only contraceptives to their employees, but ABORTION coverage as well.
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written by Jack,CT, July 01, 2014
To the Greens and All involved, Congrats!

Also; Also to all "Home Health Care Workers"(FAMILY!)
who are actually family members caring
for your own,I am very happy you will
no longer be forced into a labor union!

I have "certified" after teaching basic
care to family members how to safely
care for loved ones and I can assure
you every penny counts for the family
caring for a loved one 24/7!

God Bless All those who keep there
children home/care for/love and yes
Sacrifice so much-And SHAME on unions
for attempting to take from our frailest.
Our Supremes restored my Faith in them.

BTW: the Greens pay more than double
min wage,"The lawyer in the big
white house should be thankful-


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written by Richard A, July 01, 2014
On the Notable page of this website we see this excerpt from the Supreme Court's decision.

"...the owners of three closely held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point."

Isn't that the clumsiest reasoning you've ever seen, and the worst usage of "religion" ever? How about "...the owners of three closely held for-profit corporations have passed high-school biology and understand, along with every medical school in the country, the scientific fact that life begins at conception and that it would violate any sentient human being's minimally-aware conscience to facilitate access to contraceptive drugs or devices that operate after that point."

This isn't really about religious belief. It's about moral reasoning.
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written by Schm0e, July 01, 2014
They will arrange and rearrange the deck chairs as they will. The band will play on.
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written by Jack,CT, July 01, 2014
shamO,The fact is when the Supremes issue a
decision it is far from the titanics
band!
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written by Paul, July 01, 2014
You dodged the bullet this time but eventually you'll end up like us in Canada. When the government takes over health care and you have government funded drugs plans it's anything goes.
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written by Tad, July 01, 2014
I am alarmed by one of the comments that states that
there is no authority in our chaotic world representing God's Law. Cardinal Karol Wojtyła comes to mind, his absolutely brilliant work on human sexuality (Love and Responsibility, Theology of the Body). My question remains: What did the Church do with these gems of unquestionable charity? Where was the army of Bishops, the chosen ones, teaching the New Israel the Catholic morality so cleared presented by Jesus Christ in the Bible.It is still time to set people on fire for Christ. I beg the Church: Will it and do It! Thank you.
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written by DougH, July 01, 2014
@Gian: There is a major, qualitative difference between being generous with your own money and being generous with someone else's money.
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written by Howard Kainz, July 01, 2014
Justice Ginsburg's dissent unfortunately summarizes what possibly the majority think: namely, that contraceptives and abortifacients are conducive to health -- like transfusions, innoculations, anesthesia, etc. Such obviously "healthy" items, in their mind, should be exempt from any religious taboos.
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written by Manfred, July 01, 2014
The Catholic Church has never taught Freedom of Religion for the simple reason there is only one which is true! Forget what someone will tell you was "taught" at Vatican II. The concept is American from a time when most Americans were either Deists or some variant of Protestantism.
Today, you have Americans who are Jewish, Muslim. Wicca, Hindu, Taoist, etc. who do not believe that Jesus of Nazareth was Divine and His teachings and His Church are the Will of God. How could you ever reconcile all the disparate beliefs extant today in this Country? It would have to lead to chaos, so a government's answer is to be secular.
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written by Hadley Arkes, July 01, 2014
Richard A. picks up again, aptly, a point I’ve been making often in these columns, and as he makes it now he illuminates something else that troubles the coherence of the reasoning offered by the Court. The Catholic position on abortion has not appealed to faith or revelation-- it has been a weave of embryology and principled reasoning; the moral reasoning of the natural law. Now, picking up on Richard A’s comment: no serious Catholic would come into Court and say that he “believes” that life begins at conception. And so we’re faced with this oddity, which I’ve pointed out in my pieces: We may have an owner of a business, who disclaims any religious convictions, but he has reasoned his way to a moral objection to abortion with precisely the same reasoning used by the Church and Catholic writers. We would gather that he would not be protected by the decision of the Court on Monday: He would not have a claim to be released from the mandates of HHS in the way that the Greens and the Hahns would, even if he has a closely-held family corporation.
But take it one step further: The serious Catholic, who disdains to argue on the basis merely of “belief”--who insists instead on the “truth” of his conviction that abortions destroy a human life—he too would not be covered apparently by the judgment of the Court. For he offers no “belief,” and invites no one to test his “sincerity.” But when good people, such as the Greens and Hahns offer their beliefs, we are told by the Court that their beliefs are not to tested by any strenuous tests and reason. For as the Court observed, “it is not for us to say that their religious beliefs are mistaken or insubstantial.”
No one, of course, takes seriously the notion that the law would hold back from judgment when it comes to the sacrifice of widows on a funeral pyre, or withholding blood transfusions from a child, even if it were claimed, as a matter of “belief” that these lives had spiritually ended. These words of the Court, disclaiming judgment, seem part of a Brigadoon-like world: they seem to flare into existence in the magic of the moment—only to evaporate when sedate reflection comes crashing in again.
None of this was necessary in order to defend the Greens and Hahns from the imposition of these mandates—to order them to bear, at private expense, what the Obama Administration considers a public obligation. And to become accomplices, at the same time, in policies that violate the principles that command their respect. There was no need, in achieving this outcome, to detach religion and conscience from claims of truth. We are, I’m afraid, bedazzled by the outcome, and too reluctant to speak the plain truth: that this is a jurisprudence that cannot give a coherent account of itself.


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written by Sue, July 03, 2014
It is a heavy irony that the author of this article also wrote another celebrating the USCCB staffperson who did his utmost to bring Obamacare into the acceptance zone of "prolife" congressmen - that is, Richard Doerflinger and his promotion of the Stupak amendment.
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written by Nancy D., July 07, 2014
Only The True God can endow us with our inherent Right to Religious Liberty, the purpose of which is so that we can come to know, Love and serve The ordered, complementary, Communion of Perfect Love that Is The Blessed Trinity, not so that we could worship false idols, or each become a god onto ourselves. Love is not possessive, nor is it coercive, nor does it serve to manipulate for the sake of self-gratification, which is why we have the free will to choose to know, Love and serve God. I suppose one can argue that free will gives us the right to be wrong, but how can there be a right to be wrong when every person has a right to know The Truth?

While error has no rights, this does not change the fact that error can often illuminate truth, as evidence throughout our Salvational History. The right to be wrong in essence, is not a right to be wrong, but rather a right to come to eventually know the truth through trial and error.

It is only logical to assume that if our Founding Fathers did not believe that Religion should and would serve to complement and thus enhance the value of the State, they would not have secured and protected our inherent Right to Religious Liberty from the start.
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written by Nancy D., July 07, 2014
For those who desire to provide insurance coverage to their employees, but do not want to violate a tenet of their Faith, one would think that since the Court has ruled that a privately held corporation can not be forced to provide contraception coverage, a privately held Insurance Company would have that same right. One should be able to purchase insurance coverage from an insurance provider that does not provide contraception coverage, and not be penalized, as one would, in essence, be following the spirit of the Law, which was passed in Congress, without the inclusion of contraception coverage.

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