The Hobby Lobby decision was greeted by the United States Conference of Catholic Bishops and others as a great victory for religious freedom, a defeat for the forces of secularism in the “war on religion.” Women’s groups filled email boxes across the land with fundraising appeals, adding the Hobby Lobby decision to their list of grievances in the purported “war on women.” But, the truth be told, the Supreme Court’s decision reflects the muddled quality of these supposed “wars,” does little to assuage them, and the reactions all-around indicate that the “wars” will continue because powerful interests want them to not because the issues at stake are incapable of resolution. There are a lot of issues to look at in the decision and in the reactions, and I will address them in no particular order.
The first question that popped to my mind was this: How many times does the Obama administration have to get spanked at the Supreme Court before it realizes that they approach some of these difficult issues with an insufficiently broad understanding of the law or the culture? Did many Catholic advocates and stakeholders not urge the White House to find a different mechanism for delivering the contraception coverage it sought? Did those of us who support the goals of the Affordable Care Act not urge the White House to avoid this fight? It has not been a good week for the White House at the Supreme Court, has it. And, as the administration prepares to draft an LGBT non-discrimination rule, you would think yesterday’s decision would make them more inclined to acknowledge the need for some robust religious exemptions. But, I am not holding my breath.
Second, the Court’s extension of rights that the American tradition associates with individuals to corporations, first undertaken in Citizens United and here extended to the religious field is problematic. The whole reason to form a corporation is to protect the individuals founding it from personal liability. If those same people can claim personal rights, while abstaining from personal responsibilities, a new and dangerous imbalance is introduced into our civic life. Make no mistake – I do not support the proposition that one must abandon one’s faith when entering the public realm, including the realm of business. More on that later.
I am firmly committed to the view that any decision that strengthens the Religious Freedom Restoration Act is a good decision. The Court’s majority opinion certainly does that and, in fact, Justice Ginsburg’s dissent is more than fulsome in its praise for religious freedom, especially the rights of religious organizations. But, there is something very worrisome at the heart of this case for Catholic organizations like Notre Dame and the Archdiocese of Washington and the Little Sister of the Poor, all of whom are challenging the accommodation the administration offered them: In his concurring opinion, Justice Kennedy seemed to indicate that he voted with the majority because the administration did not offer a similar accommodation to Hobby Lobby. Indeed, the majority opinion also indicates that the accommodation mechanism was “less burdensome” on religious freedom – one of the requirements to sustain a RFRA claim – than the situation facing Hobby Lobby. But, Kennedy went further. He wrote:
But the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litigation, and that is less restrictive than the means challenged by the plaintiffs in these cases….The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.
Justice Kennedy, then, seems to think that the accommodation being challenged by religious organizations “does not impinge on [their] religious beliefs,” which is precisely what the Church-related organizations are claiming. If Hobby Lobby was a 4-1-4 decision because Kennedy concurred with the majority, one can imagine a 4-1-4 decision going the other way when the religious organizations’ challenge to the mandate reaches the Court. Unless, as is possible, some in the dissent in this case think, quite rightly, that the government should be far less inclined to interfere with religious organizations than with private for-profit companies. Time will tell. But, the USCCB should not be celebrating too quickly.
I note in passing that this whole brouhaha could have been avoided if our nation would do what it should have done long ago: Get employers out of the business of delivering health insurance in the first place and enact a single payer system. But, that will happen right after pigs fly.
In our litigious society, these kinds of conflicts get resolved in the courts. That is a shame because the issues involved are larger than legal issues and framing permit. Let us take the central issues in this case, the ones that really matter: Does a private person forfeit some of their religious freedom when they enter the marketplace? Or, is religion an essentially private thing? In American history, we have long had a kind of civic religion, essentially mainstream Protestantism dressed up in its most ecumenical garb, permitted into the public square. In recent years, that faded in part because of bad legal theories that equated neutrality toward religion with the absence of religion. But, that civic religion also faded because it made Americanism into a false idol, and no one really believed it anymore. Religion in America has mostly been a private affair, as one would expect from a largely Protestant nation.
Indeed, cultural commentators going back to de Tocqueville have recognized that Americans are at the same time very religious and deeply secular, that the thing that most motivates Americans is business, and that religion has never, ever been permitted to affect the business culture in any significant way. Mr. Carnegie could make his large philanthropic contributions for projects of societal betterment AND hire the Pinkertons to shoot down labor organizers. So, while I welcome the prospect of greater focus on the necessarily public role of any religion that is worth its salt, let’s not kid ourselves about the significance of the Hobby Lobby case: The same politicians who celebrated it yesterday are unlikely to endorse what the rest of Catholic social teaching has to say about the organization of the economic life of the nation.
And, this is why, no matter how you look at it, yesterday was a bad day. By focusing the discussion on the conscience rights of individuals, as opposed to focusing on the integrity of our religious institutions, the USCCB and others have abetted, unwittingly, the privatization of religion and done little to halt the secularization of the culture. The Court thinks that corporations are people, so corporate behavior is now to enjoy First Amendment religious protections – an assertion that would have startled Fr. John Courtney Murray, SJ, to be sure. But, in a culture that equates conscience with whim, we have not encouraged the culture to face its deeper issues, the ones that really matter: Is a faith that does not generate culture truly alive? Must conscience be conformed to truth? Are we, as Catholics, to be saddled with a conception of religious liberty that is, in the words of Becket Fund founder Seamus Hasson, premised on “the right to be wrong,” a premise that is not found in the Second Vatican Council’s Dignitatis Humanae? Before Hobby Lobby and after Hobby Lobby, are we not still stuck in the seraglio of the Enlightenment? These are the questions that stalk the debate about religious liberty in our country and nothing that happened yesterday advances them one iota. So, one cheer for the protection of religious freedom, but not three.