Good news today. The decision in the Hobby Lobby case helps prevent progressives from achieving their goal of making religious people into dhimmis, second-class citizens in a society governed by secular values.
A central issue in the Hobby Lobby case concerns for-profit corporations. Does the Religious Freedom Restoration Act (RFRA)—the legislation under which the case was brought—apply to them?
The majority decided that, yes, it does. “We reject HHS’s argument that the owners of companies forfeited all RFRA protection when they decided to organize their businesses a corporations rather than sole proprietorships or general partnerships.”
This is a very good outcome. Without it religious entrepreneurs would be vulnerable to intolerable pressures. In a key passage, the majority observes that to interpret RFRA to exclude for-profit companies “would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation.”
By my reading, the key term is “full participation.” The Court’s majority made its decision on legal grounds. That’s what judges do. But they also take into account the larger social and political context. In this case, the majority recognizes that the contraceptive mandate like the euphemism, “women’s health,” is part of a larger, controversial social agenda that includes promoting abortion.
In these circumstances, the Court’s majority—especially its swing voter, Anthony Kennedy—worries a great deal about the desire of any social agenda, conservative or progressive, to gain control of government power to bulldoze opposition and impose dhimmitude on those who refuse to comply.
This is why it’s so important to protect for-profit companies. If progressives could make acquiescence to their view of morality a precondition for owning or running a company, they would indeed possess a very powerful bulldozer.
In her minority opinion, Justice Ginsburg focuses on the same issue and speaks in even broader terms. In her passage warning of dangers to the Republic, she draws the opposite conclusion. Instead of the specter of companies being forced to pay for third trimester abortions, she worries about born-again Christians organizing their businesses around biblical principles about sex and marriage and refusing to employ “fornicators and homosexuals,” and that, God forbid, photographers will be able to refuse their services to same-sex couples. She shudders to think that proponents of gay rights won’t have the full power of government at their disposal to compel compliance. She implies that people who dissent should not have what the majority called “full participation in the economic life of the Nation.” They—we—should be made into dhimmis.
A collision between religious liberty and gay rights is coming, as Ginsburg rightly intuits. It’s not going to be easy, and Ginsburg also raises exactly the right question. “How does the Court divine which religious beliefs are worthy of accommodation and which are not?”
Ginsburg gives two extreme examples that she thinks show the untenable nature of the majority decision in Hobby Lobby. However, they clarify rather than refute.
The first involves a case in which a Native American objected to a policy of using his child’s Social Security number on the grounds that it “may harm [her] spirit.” The Court ruled against him. The second is an old standby used whenever social conservatives object to the legal imposition of progressive morality. It evokes the racist justifying on religious grounds his refusal to serve black patrons, which of course the Court has rejected. How, she asked, can the majority avoid reversing these decisions? If Hobby Lobby can opt out of the contraceptive mandate, why can’t the religiously motivated bigot opt out of civil rights law?
The answer is substantive, not constitutional. As Hadley Arkes argued in “Recasting Religious Freedom,” it has to do with the content of our beliefs, not our sincerity in holding them. Judges work hard within the limits of the law to accommodate what they regard as legitimate grievances. Therefore, a great deal turns on what’s considered legitimate.
This Court doesn’t take seriously worries that Social Security numbers harm spirits or that the Bible endorses racism. By contrast, it (or at least the majority) does take seriously the notion that a religious person—or for that matter any morally serious person—might be pro-life, the essential moral issue at stake in the Hobby Lobby case.
So, when I look into my crystal ball to see the future of our legal culture, at least when it comes to the clash between gay rights and religious liberty, I see the finer points of the law turning on similar assumptions about legitimate grievance.
Will the Justices allow that censure of homosexual acts and opposition to gay marriage are reasonable? Will they see that allowing photographers and wedding cake makers to opt out of a compulsory regime of gay affirmation is neither disruptive nor burdensome to those who think otherwise?
Put simply, will the Justices regard opposition to gay marriage and other aspects of gay rights as nothing more than bigotry dressed up in religious disguise?
The legal battles will continue. But if we’re to resist dhimmitude it’s the cultural ones that are more important. We need to defeat the Selma Analogy. We need to show that our opposition to progressive attempts to redefine marriage and transform sexual morality is based in reason and motivated by a concern for the common good.
