Hobby Lobby: Joy – and Disappointment

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 Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of 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 available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.