In his opinion in the Hobby Lobby case [1], Justice Samuel Alito writes that “the owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. . . .[They] have a sincere religious belief that life begins at conception.” Under the Religious Freedom Restoration Act (RFRA), that was good enough to win, for now. But it may not be so in the future if supporters of these beliefs do not show why it is reasonable to hold them.
To see why, consider Justice Ruth Bader Ginsburg’s dissent, in which she offers examples of other “religious beliefs” that sincere business owners may hold:
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? According to counsel for Hobby Lobby, “each one of these cases. . .would have to be evaluated on its own. . .apply[ing] the compelling interest – least restrictive alternative test.”. . .Not much help there for the lower courts bound by today’s decision.
Justice Ginsburg raises these counterexamples precisely because they are based on beliefs that most people would see as unreasonable. Although, as she notes, Hobby Lobby’s counsel appealed to RFRA’s compelling interest – least restrictive means test as the principle by which future courts could thwart such counterexamples, she is not convinced of its workability. For “there is an overriding interest. . .in keeping the courts ‘out of the business of evaluating the relative merits of differing religious claims’. . .or the sincerity with which an asserted religious belief is held.”
But it’s not clear how the judiciary can really avoid this when dealing with claims and practices that dissent from dominant cultural understandings. Consider, for example, the cases involving the teaching of Creation-Science [2] or Intelligent Design [3] in public schools, ordinances that forbade Santeria animal sacrifice [4], the Amish and compulsory education [5], the Mormon practice of polygamy [6], and non-theistic [7] conscientious objection [8]. None of these cases could have been resolved without judicial evaluation of the merits of religious claims and practices and their effect upon the public good.
In the Santeria case, for example, the Supreme Court held that a law that was not generally applicable or neutral, that targeted religious practice, was unconstitutional unless it survived strict scrutiny. In order to engage in that assessment, a court would have to figure out if the government’s interest is compelling. But how can one possibly do that without at some point evaluating the merits of the religious claims in question? After all, it makes a difference whether the law under scrutiny is criminalizing the use of communion wine or of child sacrifice. In other words, whether the government’s interest is compelling depends on the background beliefs of what counts as reasonableness and the public good held by those who are doing the judging.
The Amish: reasonable
In each of these cases, the courts (and the attorneys who argued the cases) employed non-revelatory beliefs in order to determine (or defend or critique) the reasonableness of the religious claims and practices in question.
In the Creation Science and Intelligent Design cases it was the non-scientific status of the theories under scrutiny that ultimately did them in. In the Santeria case, it was the city council’s inconsistent application of principle that was essential to the church’s victory: the council’s announced purpose – health and safety and stopping animal cruelty – did not seem to be sincere, for the ordinances did not target other forms of animal killing or health concerns for those practices.
The Amish were allowed to opt out of certain compulsory education requirements because, among other things, they “succeed in preparing their high school age children to be productive members of the Amish community. . . .their system of learning through doing the skills directly relevant to their adult roles in the Amish community. . . [is] ‘ideal,’ and perhaps superior to ordinary high school education.”
The federal prohibition of Mormon polygamy in the Territories, according to the Court, did not violate the Free Exercise Clause, because Congress may criminalize actions, even if they arise from religious warrant, if those actions are “in violation of social duties or subversive of good order.”
In the non-theistic conscientious objection cases, the Supreme Court justified extending to non-theists the protections of a federal statute that textually limited objectors to theists by arguing that the atheist objector’s “beliefs certainly occupy in the life of that individual ‘a place parallel to that filled by. . .God’ in traditionally religious persons.”
It seems then that courts will, whether one likes it or not, issue judgments about religious claims and practices that are guided by unchallenged assumptions of what counts as reasonable (including what counts as the public good).
This is why those who hold beliefs like those held by Hobby Lobby’s owners cannot ignore the power of the received cultural understanding of reasonableness on the intellectual formation of judges. That understanding, as I have already argued on this page [9], assumes that the issue in dispute is really a matter of two allegedly incommensurable subjects – faith and reason – rather than a matter of two contrary answers to the same question: is the embryo one of us? This is why Justice Ginsburg and a generation of young lawyers (some of whom will sit on the federal bench), see Hobby Lobby’s beliefs as outside rational discourse.
If the friends of Hobby Lobby do not rebut this understanding – by making the argument in those venues outside the courtroom that really shape judicial reasoning, in the culture and the law reviews – a future court may conclude, as it would with a Christian Science business owner, that a sincere belief is not enough.