A Vindication of Religious Pluralism
There are many reasons to cheer the Hobby Lobby decision.
Jul 14, 2014, Vol. 19, No. 41 • By JOSHUA HAWLEY
On June 30, the Supreme Court ruled that the federal government cannot force Americans to abandon their most deeply held convictions as the price of doing business in the United States. Burwell v. Hobby Lobby counts as a landmark win for religious liberty. But it is also an important vindication of one of our Constitution’s most remarkable achievements: its ability to make religious difference a source of national unity.
Hobby Lobby supporters celebrate a victory.
The story of the Hobby Lobby case is familiar enough by now. The litigation started when the Obama administration issued regulations under the Affordable Care Act that required every business owner with 50 or more employees to pay for 20 different forms of contraception in their employee health plans, including 4 contraceptives that work by preventing the implantation of an already-fertilized egg.
The Green family were among those subject to the mandate. David and Barbara Green started what was to become Hobby Lobby in the back of their garage in 1970; 44 years later, the company is still entirely family-owned. The Greens have been providing health care to their employees for years, including coverage for contraceptives. But the Greens, Southern Baptists, object to abortion on religious grounds. The mandate left them few options. While the administration fashioned an “accommodation” of sorts for certain nonprofit organizations, it steadfastly refused to accommodate the religious beliefs of for-profit business owners. So either the Greens violated their religious convictions or faced a set of draconian fines, to the tune of $1.3 million—every day. Forever.
The Supreme Court’s decision in Burwell v. Hobby Lobby put a stop to that. Writing for a five-to-four majority, Justice Samuel Alito held that corporate owners may claim the protection of the Clinton-era Religious Freedom Restoration Act. Under that law, adopted in 1993, the federal government is obliged to demonstrate that any substantial burden on a person’s religious faith has been imposed only for a compelling state interest that the government has pursued in a narrow, targeted fashion. The government failed that test in Hobby Lobby, not least because, the justices concluded, the government had ample alternative means to make the four disputed contraceptives available to women who wanted them—free of charge, even—without dragooning religious objectors into paying.
The Court’s ruling reaffirms one of the most vital personal freedoms we hold as Americans: the freedom to follow our consciences, to form our own religious and moral convictions, and to live peaceably by the convictions we hold.
That is cause enough for celebration. But the decision is noteworthy for another reason. It vindicates and preserves the Constitution’s mechanism for converting religious pluralism into social belonging.
Despite what one might gather from the shrill rantings of the leftist commentariat, for whom religion is a sort of disease, religious difference in the United States has rarely led to serious social strife. That is no small achievement, and one that virtually no other Western democracy can boast. At this very moment, in fact, more than a few of the nations of Europe are badly and dangerously divided by religious allegiances.
The secret to the American achievement is the special place the Constitution accords to religious belief. Contrary to what many secularists allege, the Constitution and Bill of Rights did not “privatize” religion and quarantine it from the public square. Thomas Jefferson’s famous quip that “it does me no injury for my neighbor to say there are twenty gods or no God,” for it “neither picks my pocket nor breaks my leg” has always been misleading in this way. The Constitution has never treated religion as merely another private opinion that government can order people to keep to themselves. On the contrary, as the Supreme Court recognized in another case from just three years ago, the Constitution gives both religious belief and religious institutions “special solicitude.”
And that is precisely how our constitutional order manages to fuse religious passion and social unity. The Constitution treats religious belief as uniquely special, uniquely central to the dignity of the human person, and, for that reason, beyond the power of the state to control. And so the Constitution asks Americans to agree not on a religious confession, but on the idea that the pursuit of spiritual devotion, of genuine worship—of truth, in the final analysis—is a worthy one, which all people deserve the freedom to undertake. This shared, national commitment to conscience and the free pursuit of truth is one of the signal components of the American creed.
The upshot is that believers of all faiths are free to pursue their religious convictions peaceably. And that means believers of every faith have felt they belonged as Americans.
The Obama administration’s attempt to force peaceable religious expression from the workplace—the administration argued to the Supreme Court that commercial activity and religious conviction were opposed and incompatible—threatened this constitutional settlement. The administration claimed that religion is and should be an essentially private matter that becomes fully regulable by government if expressed in public.
But that invites the government to decide which religious beliefs are important, which deserve accommodation, which fit best with the government’s plans. That approach turns religious groups into competing factions attempting to win the government’s favor, perhaps at the expense of others. That is to say, the Obama administration’s approach is an invitation to social disunity, faction, and strife.
By protecting the right of all citizens to express their faith peaceably in the workplace and through their businesses, the Supreme Court’s decision in Hobby Lobby preserved the historic American commitment to “special solicitude” for all religious belief. Or as Justice Anthony Kennedy summarized in his concurring opinion, “Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.”
That is an affirmation worth celebrating.
Joshua Hawley is an associate professor of law at the University of Missouri and counsel to the Becket Fund for Religious Liberty. He is one of the attorneys who represented Hobby Lobby at the U.S. Supreme Court.
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