Hobby Lobby at the Court, Today

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 Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & 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.