A legal look at Hobby Lobby’s ridiculous “freedom of religion” argument

Today, the Supreme Court heard oral argument in the Hobby Lobby case. In a recent post, I discussed one of the two primary issues the Court is considering: whether or not for-profit corporations have the right to freely exercise religion.

The other, more intuitive issue is whether the Affordable Care Act’s contraceptive mandate, which applies to relatively large corporations that employ more than fifty people, infringes on the free exercise rights of religious corporations, should the Court determine that those corporations have such rights at all.

Importantly, the corporations that have brought suit in the case — Hobby Lobby and Mardel — elected not to challenge the contraceptive mandate explicitly on First Amendment grounds, and have instead based their case on the federal Religious Freedom Restoration Act.

This technicality has no real bearing on the conceptual issues in the case because the RFRA is intimately connected to the First Amendment’s Free Exercise Clause. In fact, the RFRA was conceived as an effort by Congress to alter the Supreme Court’s interpretation of the Free Exercise Clause (a thing Congress is, of course, constitutionally powerless to do). The RFRA even borrows the language of the Supreme Court’s “strict scrutiny” standard of review, meaning that the law is, in essence, a mini-First Amendment.

Thus, whether the Hobby Lobby case amounts to an explicit First Amendment challenge, or an attempt to seek refuge under the RFRA, it is functionally the same case.

The “Free Exercise” Anachronism

The essential question in this case is whether the RFRA, channeling the First Amendment’s Free Exercise Clause, immunizes a corporation from a legal obligation that arguably conflicts with the religious faith of the person running, or owning, the organization.

Respecting this question, one reflection cannot be avoided: Does it not seem crazy that more than a decade into the 21st century the fate of an important and controversial part of a duly-enacted law rests on its compatibility with religious observance?

I try to avoid the tantalizing conceit of religion-bashing whenever possible. We cannot forget the havoc that religion has wreaked throughout human history. Despite its debatable graces, major religion has always been a bulwark against progress and human dignity.

It is curious, then, that religion should now be contemplated as a means to acquire special exemptions from laws of general applicability, including those which do not even have the indirect effect of prohibiting or inhibiting it. In fact, this is a shockingly expansive principle.

The slippery-slope

What, after all, isn’t arguably incompatible with religious observance?

Surely there could be — might currently be — a religious cult that centers itself on the refusal to interact with African-Americans. By the terms of the First Amendment, if we accept the view of the Free Exercise Clause and the RFRA proffered by Hobby Lobby and its religious compatriots, no law that might compromise the free exercise of such a cult can be applicable to it.

A man dressed as the Flying Spaghetti Monster (FSM) poses at the Stewart/Colbert Rally to Restore Sanity and/or Fear, Oct. 30, 2010 on the National Mall in Washington, DC. (L. Kragt Bakker / Shutterstock.com)

A man dressed as the Flying Spaghetti Monster (FSM) poses at the Stewart/Colbert Rally to Restore Sanity and/or Fear, Oct. 30, 2010 on the National Mall in Washington, DC. (L. Kragt Bakker / Shutterstock.com)

The list of similarly absurd examples is endless, because religious beliefs are generally based on nothing but faith. This is what makes religious beliefs religious and not scientific or philosophical, the latter two appealing on a logical, if not an evidentiary basis. Thus, Richard Dawkins’ admittedly crude and mean-spirited attempt at religious satire, the Flying Spaghetti Monster, is as much evidenced as the supernatural figures of Jesus Christ, the Prophet Muhammad and, of course, the Big Man himself.

Could not a Christian avoid the obligation to pay income taxes, the majority of which go to defense spending, on grounds of the inherent incompatibility of funding the military with observing Christ’s injunctions toward non-violence?

Much more than fear of contraception, which is nowhere preached by Jesus, nor reasonably extracted from anything he is known to have said, pacifism is an undeniable tenet of the Christian faith. Doesn’t the endless privilege of free exercise, then, threaten to undermine of all things — gasp! — our precious military? Is nothing too sacred to be overcome by it?

Hobby Lobby’s free exercise argument

Fear not, the lawyers for Hobby Lobby and Mardel, who are really the lawyers for their Christian owners, the Green family, have presented a suitably lubricious argument to avoid that dilemma.

They have attempted to establish a feeble distinction between the obligation to pay general income taxes, which the government can use to pay for contraceptives, and, on the other hand, being forced by law to directly pay for contraceptives.

The former, the lawyers concede, presents no problem; the government has every right to enact such a policy. But the latter situation, they argue, is categorically distinct.

Keep in mind that lawyers pride themselves on making self-serving and often trivial distinctions to win cases. That is exactly what is being done here.

If the source of Hobby Lobby and Mardel’s free-exercise objection to directly-funding contraception is “religious observance of God’s law,” how would it not perturb them in the same way if the government were taxing their property and using the resultant funds to pay for birth control?

Is God’s law so petty as to privilege the means over the ends?  God’s okay with “murder” so long as it’s circuitous, and laundered with a middle man?

If it is a violation of God’s law to play a role in granting females access to birth control methods, does it really matter whether such access is granted via a law that compels one to directly purchase contraception for women, or through a general tax fund comprised in part by one’s own money? And if so, why?

And on the contrary, during the Vietnam War, conscientious objectors felt that the moral obligation to oppose unjust wars compelled them to go to prison, rather than pay taxes to a general fund which would inevitably be used to fund war.

The “distinction” is even less compelling when one considers that the federal government is also entitled to simply mandate a higher wage for the employees of large corporations, which said employees could then use to purchase broader health coverage, including access to contraception.  Again, same ends, different means.  And while such a distinction might be legal, is it really moral?

With all of this in mind, and giving proper respect to the Creator’s intelligence, it is hard to see why Hobby Lobby and Mardel’s corporate piety requires that the RFRA and the First Amendment allow self-exemption from the legal mandate to directly purchase contraceptives for women.

Deceiving God

The effort to “get around” God’s law is as old as religion itself.

Fornication is illegal under the Iranian interpretation of Shariah Law, so naturally there is a business for mullahs who sell temporary marriages to men in search of quick sexual gratification, who happily sign divorce papers when the business is done. (Seriously.)

Similarly, the ever-ethical Catholic Church used to sell “indulgences” to pardon certain sinful offenses so that they could be perpetrated without fear of punishment — at least by those with enough money to pay. God is apparently too daft, or money-grubbing, to know (or care) when “He” is being cheated, as Hobby Lobby and Mardel’s spurious distinction is attempting to do now.

What is the purpose of the Free Exercise Clause?

It definitely makes sense to give legal protection to those who wish to exercise their religious beliefs free from arbitrary proscriptions and prohibitions — at least insofar as the exercise of those beliefs does not run afoul of essential social obligations. This was, as far as history can tell, the purpose of the Free Exercise Clause of the First Amendment as the Framers of our union contemplated it.

But as is customary with our Constitution, two centuries of “interpretation” by the Supreme Court, and of activism by Congress, has yielded a Free Exercise Clause that would have been unrecognizable to the people who wrote, implemented, and actually voted to authorize it. Theirs was a limited purpose. They sought to prevent the establishment of a state religion like the Anglican Church and, concomitantly, to prevent government from prohibiting the free exercise of any faith. This duality of purpose is the reason the Establishment Clause and the Free Exercise Clause lie together in the First Amendment.

What the Framers did not intend to do — or, at least, there is zero evidence they intended to do it — was to create an unlimited license for religious Americans to exempt themselves from any law that arguably affects their religious observance, even if the effect is indirect and de minimis.

Had the Framers harbored such a collective intention, it would have grated on figures like Thomas Jefferson and Benjamin Franklin, the former likely being a deist, and the latter, most probably, an atheist. Neither would have thought much of a license in the form of religious privilege that was not granted in kind to secularists.

So I invoke the spirits of Jefferson and Franklin (and of Thomas Paine and others) when I ask: Why should religious Americans get a special exemption from legal obligations because of a masculine deity’s capricious rules, while secularists cannot hope to get the same treatment, the same favoritism?

This double standard is anachronistic and contemptible.

Going forward

Hopefully, the Supreme Court won’t issue yet another activist conservative ruling of the kind that Roberts’ tenure as Chief Justice has become known for.

The Free Exercise Clause, and the RFRA, are rooted in the sensible desire to avoid oppressing the private spiritual pursuits of Americans. But unless the law is explicitly aimed at stifling “religious observance,” the government should not need a “compelling interest” to justify its application to all citizens.

While the RFRA is correct in asserting that “neutral” laws can sometimes “burden” religion as severely as explicitly discriminatory ones, the burdening of personal convictions is an inevitable part of living in a society where the majority, not single individuals, make the rules.

Many of us weren’t terribly impressed with the Iraq War, for example. But we paid our taxes because, as individual citizens, there is no constitutional requirement that every duly enacted law appeal to, nor be, compatible with our personal sensibilities.

Generally, we don’t get to pick and choose the laws with which we comply. And considering the pandemonium that would result if we did, I thank God for it.


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David Delmar is a third-year student at Harvard Law School, with experience in both civil and criminal public interest law. His interests include law, politics, culture and society, philosophy, religion, and great fiction. David particularly likes to write about issues affecting human rights and civil liberties.

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