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“Religious Freedom” and the ACA: Campaigning on the Sovereign Exception

Religion is, of course, no stranger to politics in the United States, a fact that becomes all too clear in election season, as incumbents and their challengers hone their rhetoric to appeal to the theological sensibilities of their base. For better or worse, religion will no doubt continue to play a role in the run-up to the midterm elections. But in the wake of the Supreme’s Court’s decision in Burwell v. Hobby Lobby . . . we can, I think, expect to hear a lot about religious freedom.

Editor’s Note: This post is the first in a series that we hope to run over the next few months, “On the Campaign Trail,” which will aim to highlight and analyze important tensions in the relation of religion and politics arising during the US 2014 midterm campaigns.  Hollis Phelps will be one of our regular contributors to this series.

Religion is, of course, no stranger to politics in the United States, a fact that becomes all too clear in election season, as incumbents and their challengers hone their rhetoric to appeal to the theological sensibilities of their base. For better or worse, religion will no doubt continue to play a role in the run-up to the midterm elections. But in the wake of the Supreme’s Court’s decision in Burwell v. Hobby Lobby that “closely held” corporations can’t be compelled against their religious principles to provide certain types of contraceptive coverage to women, we can, I think, expect to hear a lot about religious freedom, especially in connection to the Affordable Care Act (ACA) or “ObamaCare.”

Republican opposition to the ACA has, of course, been pretty much constant since the law’s inception. Combined with real, perceived and, at times, utterly manufactured concerns of the law and its scope and a sometimes irrational fear of the president and his policies, the Republicans hope that that opposition will play well with voters. That’s, at least, been Thom Tillis’s main strategy in North Carolina, which is one of the most important races in the midterm elections.

Tillis’s campaign has largely hinged on portraying incumbent Kay Hagan as ineffectual and connecting her to Obama and what he paints as his failed and overreaching policies. The strategy isn’t surprising, but the crucial link in it is Hagan’s support for the ACA. Indeed, it wouldn’t be overstating the matter to say that the race is as much about Hagan as it is the ACA. Tillis’s criticism of Hagan over the ACA is almost constant, but it is perhaps best summed up in the following quotation from an article posted on his campaign website on July 7: “ObamaCare shattered Hagan’s credibility trustworthiness after she deliberately deceived North Carolinians with false promises that individuals who liked their plans could keep them.”[1]

Tillis’s campaign for Hagan’s seat thus rests on identifying her with Obama and the ACA. But in the wake of the “Hobby Lobby” Obama and the ACA are now correlated politically with the notion and rhetoric of religious freedom. Hence Tillis connected the ruling with “religious freedom under ObamaCare,” and stated that “the Supreme Court made a strong stand in two cases for important First Amendment freedoms – the right to not be forced to pay union dues and the right to religious freedom. Although today was a loss for Kay Hagan, Barack Obama, and the Washington bureaucrats who want to run our lives, the American people are the clear winners.”[2]

Now, unlike some politicians, Tillis isn’t really known for wearing his faith on his sleeve, so to speak, or for explicitly injecting religion (and in North Carolina that invariably means Christianity) into policy debates. He all but opposed a ridiculous attempt last year by a few North Carolina lawmakers from Rowan County to establish a state religion (guess which one).[3] His campaign website does contain some generic statements about “faith” and some language important to more conservative Christians (“ban on gay marriage,” “pro-life”), but nothing that suggests that he takes overt religious commitment as a badge of honor. Indeed, many on the “religious right” in North Carolina initially lent their support in the GOP primary to other candidates, most notably Greg Brannon, who was aligned with the Tea Party, and Mark Harris, pastor of Charlotte’s First Baptist Church and president of North Carolina’s Baptist State Convention.

Tillis’s nod to religious freedom is, then, important for rallying the conservative base, and it will be interesting to see what role it plays from now until November. I also, however, want to use Tillis’s opposition of “religious freedom” and the “American people” to “ObamaCare” and “the Washington bureaucrats” to make a larger point of the theological-political function of the notion of religious freedom in relation to the ACA.


We often talk about and understand rights in expansive terms, in the sense that the goal is to extend the purview of the law to a greater range of individuals and peoples. Such an understanding means that rights are correlated with recognition by the law: to have a right is to have the law on your side and access to its benefits. To use a contemporary example, that’s the basic framework assumed in the extension of marriage rights to lesbian and gay couples.

What’s interesting about the right to religious freedom, however, is that it often takes the form of an exemption from the law. The wording of the Free Exercise Clause assumes this form, and has often been taken as allowing for certain exemptions from the law: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” The assertion of the right to religious freedom, in other words, does not essentially seek to extend the purview of the law but its opposite: it seeks to limit the scope of the law, to designate a sphere where the law no longer applies. Somewhat paradoxically, freedom of religion seeks justification in and from the law in the form of an exception to the law.

If that sounds familiar, that’s because it’s the basic structure of sovereignty as outlined by Carl Schmitt and generalized more recently by the Italian philosopher Giorgio Agamben in numerous of his works. Sovereignty, for both Schmitt and Agamben, is primarily located in the exception, in the ability to suspend the law, to determine the scope of its application and, when necessary, limit its purview. The logic behind sovereignty so understood is, as both Schmitt and Agamben recognize, deeply rooted in Christianity, which rightly or wrongly has juxtaposed itself to the law in the form of the exception.


I think its possible and helpful to understand the “Hobby Lobby” ruling and the political and campaign rhetoric surrounding it in these terms. The appeal to religious freedom in these instances is not innocuous, not merely an appeal to practice one’s individual or corporate faith without interference; rather, in taking the form of an exception to the law, it is an assertion of sovereignty over the law. This is especially the case when that exception is ironically combined with a more general anti-government rhetoric, which in the case of Tillis takes the rhetorical form of an opposition to “ObamaCare,” “Washington bureaucrats,” and “Obama.” Moreover, insofar as the logic of exception finds some of its deepest roots in a Christian theological paradigm, the appeal to sovereignty at work here is an appeal to Christian sovereignty. It’s no accident, in this sense, that the “Hobby Lobby” case concerned Christian faith and practice specifically and that the political rhetoric surrounding it borrows freely from Christian theological language.

That someone like Tillis who, as I mentioned above, is not usually overtly religious, freely uses that rhetoric is, perhaps, indicative of how ingrained the structure of sovereignty is in politics in the United States. It’s also, I would add, indicative of the Christian theological assumptions that continue to play an often determinative a role in our political discourses. Indeed, if the short analysis I have provided above has any merit, it might also mean that the notion of religious freedom itself, as it is articulated and understood in the United States in the form of an exception to the law, is an expression of sovereignty rather than its limitation. That’s not to say that we should necessarily side with the law against its exception; it is, rather, to say that it’s worth thinking about religious freedom in relation to the law otherwise than in the form of the exception. Perhaps doing so would allow us to think about ways to dissolve the correlation between religion, especially Christianity, and sovereignty.



[1] http://thomtillis.com/kay-hagans-obamacare-dodge/

[2] http://thomtillis.com/supreme-court-decides-in-favor-of-first-amendment-freedoms/

[3] http://www.forbes.com/sites/rickungar/2013/04/03/north-carolina-lawmakers-introduce-law-to-establish-an-official-state-religion/

6 thoughts on ““Religious Freedom” and the ACA: Campaigning on the Sovereign Exception

  1. Or, following Robert Cover, it could be a religious community forming their own law and being positively self-governing, rather than understanding it in terms of a sovereign exception to the law. OR, is that what you are saying as it being an expression of sovereignty?

  2. Thought-provoking post, Hollis. Hope you’ll say more. Don’t the religious clauses of the First Amendment (or RFRA) make for a legal exception rather than an extralegal exception?

  3. Thanks for the comments. This is very much something that I’m still trying to think through, so there’s a lot that I need to consider and parse. But thanks for the opportunity to do so. David Kester, I’m trying to say that it’s an expression of sovereignty–I don’t think self-governance is really at issue, and I’m not sure what that would mean in reference to something like Hobby Lobby. Dave, could you say a bit more about where you’re going with that distinction? I want to say that the distinction between legal and extralegal break down in the exception, but I’d like to hear more.

    1. I tend to see the distinction as a crucial one. My worries about sovereignty are its absoluteness. If the exception is within the rule of law, there’s a better chance at check the absoluteness. The ACA is very interesting case, one that intersects with my interest in the Christian Right and neoconservative politics — and there I may worry about sovereignty and pretensions to it. Legal exceptions for vulnerable minorities seems more like a check on sovereignty than its exercise. I realize this is a conventional reading, but hard for me to see the Gobitis and Barnette cases as a sovereign exercise of the exception. Does that help?

      1. Thanks, Dave. That’s an important distinction to make. Perhaps, then, it’s not so much the exception itself but the combination of the exception with other factors (I tried to get at that in a few places, but it needs to be fleshed out more). That seems to be the case with Hobby Lobby, at least–though I still wonder if there’s not something about the way we understand religious freedom as such that lends itself to sovereignty, even if it can be used for anti-sovereign purposes.

    2. I was thinking it sounded like the stuff talked about in terms of “exceptions” to the rule of law, sounded a lot like what was discussed by Berlin in terms of negative and positive liberty. IF the negative is to be understood as a positive form of self-government, this creates conceptual difficulties. The difficulty conceptualizing the blurring of the category in the exception might suggest a move to something more like a triadic theory of freedom ultimately finding its source in the work of C.S. Pierce and Josiah Royce. see http://plato.stanford.edu/entries/liberty-positive-negative/#OneConLibFreTriRel

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