After spending weeks in mid-summer headlines, it appears the ramifications of Burwell v. Hobby Lobby have still not finished panning out. In midterm elections across the United States, Hobby Lobby has become something of a rallying cry for both parties – though in distinctly different ways. For Republicans, the Hobby Lobby decision appears to have two major electoral features: the nature of the case bodes poorly for the much-maligned Affordable Care Act, while its implications center long-held Republican concerns over religious liberty in the public square. Meanwhile, Democrats have framed the Hobby Lobby defeat as evidence of the danger of Republican appeals to religious liberty, using the verdict to galvanize female voters who view their use of contraceptives as under attack.
In other words, Hobby Lobby represents a coalescence of ghosts from the recent political past: in the threat posed toward contraception access and use there are shades of Sandra Fluke, and in the victory for religious corporations there are echoes of Jan Brewer’s February veto of Arizona’s most recent ‘religious liberty’ bill. Touching on questions of sexuality, abortion, state power, corporate personhood, the use of healthcare, and the obligations of businesses, the Hobby Lobby battle appears to be a hill made to die on for all parties involved.
For midterm voting bases, a major question in need of settling is: should the legitimacy of a religious conviction determine whether or not it warrants political protection? For instance, the Satanic Temple has now claimed it intends to pursue exemption from informed consent laws intended to expose women considering abortion to allegedly pro-life material, arguing that subjecting women to any pro-life material is contrary to its religious principles. But then again the Satanic Temple states within its own material that it is, in fact, not a ‘religious’ organization proper; it has no internal order of beliefs, but rather a commitment to not maintaining such beliefs.
In many ways, therefore, Satanism is the religion liberalism built, a ‘faith’ only insofar as it claims it is, and insofar as we are prevented in liberal, pluralistic societies from probing such claims for their legitimacy. To do so would require a standard of measurement, and to erect a standard of measurement would be to privilege some religious view over another. Since that isn’t an option in a country heavily invested in distance between church and state, we remain in an uneasy sort of truce with Satanism and its derivatives, looking to laws to harmonize the competing claims of religious organizations without being able to establish whether or not they’re good, genuine, or worthwhile.
And yet, politicians looking for a boost from the Hobby Lobby decision will likely have to make some claim as to the legitimacy of the Green family’s belief, implicit or explicit. In an attempt to rebut Democratic claims that the very arbitrariness of the conviction underlying Hobby Lobby underscores the degree to which birth control access is endangered, Republicans Kelly Ayotte and Deb Fischer wrote an op-ed in the Wall Street Journal remarking in part that:
Americans believe strongly that we should be able to practice our religion without undue interference from the government. It’s a fundamental conviction that goes to the very core of our character—and dates back to the founding of our nation. The Supreme Court’s decision in the Hobby Lobby case, which protects rights of conscience, reaffirmed our centuries-old tradition of religious liberty.
It’s hard to disagree with such sturdy boilerplate. Yet the question remains: when it comes time for Satanists to request their own exemptions, will this reasoning be enough to sustain what will doubtlessly be Republican opposition? Or will midterms host the placement of a meatier set of arguments not so hesitant about the content of the convictions considered for protection? As electoral narratives develop, the tension between religious conviction and liberal pluralism will loom ever larger, posing uncomfortable alternatives to each party.
Several thoughts:
1. To me, as a PC-USA minister, what’s missing in this is that health benefits are part on an employee’s compensation package. It is what the congregation offers me in return for my work. So now does an employer have a right to claim religious exemption from providing Unemployment Insurance, Worker’s Compensation Insurance, and/or minimum wages as required by law? Could a person be fired for donating some of their wages via direct payroll deduction (such as through the United Way) to Planned Parenthood? Many United Way’s allow one to designate gifts to non-United Way agencies. How much control over compensation can an employer have? Health Insurance isn’t a gift. It is part of a compensation package that each employee is offered though maybe now if an employer is religiously opposed to women working outside the home, they could just not hire any? When i was a child, schools fired pregnant teachers married or not. OK, it was Kansas.
2. If this is about religious freedom then it is the clash between two personal rights and the employer wins. Then an employer can refuse to employ anyone displaying a Star of David or a cross or being in a bi-racial relationship? How far can this be taken?
3.
You are right to point out the dangers of the government or the courts getting involved in evaluating the legitimacy of religions or religious beliefs, but the problem here is that you do not really provide an argument for why the issue is “a major question in need of settling” for voters, let alone something courts will need to address. Far from being arbitrary, the Hobby Lobby majority opinion has some pretty straightforward criteria for adjudicating which religious beliefs should be exempted from the law and when, criteria which are drawn from the law under question in the case, the Religious Freedom Restoration Act. The RFRA lays out that a law can force a religious believer to violate their beliefs only when the law involves a compelling state interest and when a less restrictive alternative way of achieving those interests does not exist. Both of these criteria could be applied to the case raised by the Satanists without any consideration of the legitimacy of their beliefs.
Before even getting to that, however, it is worth pointing out that the Satanists’ case is legally baseless. They are challenging STATE informed consent laws by appealing to the Hobby Lobby case, which dealt with a FEDERAL statute, the RFRA. In fact, in 1997, the Supreme Court ruled that the RFRA does not apply to states. The Satanists’ case would make more sense if the Hobby Lobby case was settled on First Amendment grounds, but it was not.
Even if we set aside that problem, ever since the Webster vs. Reproductive Health Services case in 1986, the Supreme Court has considered the life of the unborn as a valid interest of the state, justifying different type of regulation of abortion, including the informed consent laws under question. Whether that state interest is the “compelling” type mentioned by the law is less clear (even more so because in real life rather than in this hypothetical this would differ on a state by state basis).
But regardless of whether the state interest is compelling or not, the Satanists’ case would clearly fail based on the second criterion. An informed consent law, at least the type the Satanists are challenging, primarily puts a burden on the medical staff, not the patient. The laws do not require the patient to do anything other than listen to the information, and then they can make their own decision based on whatever criteria they want. It is not clear how that places a burden on the Satanists’ beliefs any more than it puts a burden on anyone else. Also, according to the law, if there is no less restrictive way of pursuing the state’s interest, then the state’s interest does trump religious freedom, and it is not clear what alternative way of pursuing the state’s interest could be pursued in this case.
These considerations are what makes Tom W.’s concerns alarmist. All of the examples he gives are clearly compelling state interests that would trump religious freedom, both in terms of the RFRA and the majority opinion in the Hobby Lobby case. Gender and racial discrimination in particular are given the highest scrutiny by the courts, so the chances of someone being allowed to discriminate in those ways based on religious liberty are practically nil.
Also, as the Satanic Temple is neither a pregnant women seeking an abortion, nor an abortion clinic (I think?), it is hard to see how they are compelled to do something or refrain from doing something relevant to the informed consent laws. That is, they do not have standing.
Major question in need of settling insofar as establishing at least the veneer of a criteria for distinguishing between legitimate and illegitimate religious claims for exemption from various statutes would appear to be necessary to make heads or tails of the divergent partisan uses of the decision in midterm campaign rhetoric. Whether or not anyone actually cares about midterm campaign rhetoric is another question; I sort of take it on good faith that at least some intrepid voters care, and note this is an issue that is very clearly ill-settled by the state of current discussion.
Well, I suppose you are right that recognizing the question of legitimacy/illegitimacy is necessary for understanding the partisan rhetoric, but I still fail to see how “settling” the question is helpful or even possible in the context you outline. I think our courts are wise enough to know that the legitimacy of a particular religion (or “religion”) is not the sort of legal question they are competent to answer, and I am doubtful that any thoughtful reflection on the question would have any impact on politicians and their rhetoric, one way or the other.
Perhaps I should have clarified: I imagined settling the question to be (in this context) a matter of public discourse, or at least some kind of national conversation. Right now I see it as too contentious and hazy to even give much guidance when it comes to voting on these types of matters. I’m not sure the courts are equipped prior to an occasion like that to begin to ‘settle’ it — in agreement with you there for sure.