Ruling in favor of Hobby Lobby, the Supreme Court decided that companies with religious objections cannot be required to provide health coverage for certain contraceptive services. In this week’s conversation, scholars discuss the implications of this decision for religious freedom and explore the wider role of religion in American public life.
By: Perry Dane
When claims for RFRA exemptions from the contraceptive mandate first popped up, I thought that the issues they raised were, on the whole, humdrum. That’s not to say that the cases were easy. But they did involve, or so I believed, largely settled principles. The difficulty was in accommodating those principles to each other on these facts. So as the debate progressed, I was most interested in how both sides described their run-of-the-mill legal dispute in apocalyptic terms, as either a fight for the very principle of religious liberty or a battle against religious tyranny. In an earlier unpublished essay, I argued that each side seemed committed to understanding the dispute, not in the “retail” terms of free exercise disputes, but as jurisdictional conflicts more akin to arguments about the “wholesale” line between the proper scope of church and state. The Supreme Court’s majority opinion in Hobby Lobby—whatever one thinks of the result—was admirably low-key in focusing on the mundane question of whether the original contraceptive mandate was the least restrictive means to achieve a compelling government interest. But that hasn’t stopped the combatants from continuing to wax epically and balefully, and continuing to tussle even in the narrower space left by the Court’s opinion.
Three things might be going on.
I focused on one set of issues in my earlier essay. The opponents of exemptions tried hard to cut off the religious claims at the threshold. They argued that RFRA’s protections did not extend to for-profit corporations. They also argued that, in any event, the contraceptive mandate did not impose a “substantial burden” on religion. For reasons I discussed in that essay, both these threshold arguments were mistaken. Ironically, though, they both pointed to, and obscured, the one genuinely deep question in the case.
Religious claims to exemptions are usually strongest when a religious community is asking to be left alone to conduct its own affairs. Conversely, state interests are often most compelling when the state is looking out for third parties. (That’s not to say, as some have suggested, that any religious exemption that imposes substantial costs on third parties violates the Establishment Clause.) Employees, though, are hard to pigeon-hole. They are not (necessarily) members of the religious community, but neither are they strangers to it. My own intuitions shift depending on the type and size of the organization, the sort of community it creates, and how much notice it provides of its religious identity. In any event, both the “corporations as persons” and the “substantial burden” question were reflections of, but infelicitous vehicles for confronting, the deeper question of the reach of religious authority over persons enmeshed in, but separate from, the religious community.
But let’s move on. The second and more specific complication in the contraceptive mandate context is, to be blunt, sex, or the place of sex in the culture wars. Some of the religious claimants do not really believe that contraception is a form of healthcare. And some of their opponents think that what is really at stake is not this or that insurance benefit but a war over sexual autonomy and women’s equality. Consider this: The critics of exemptions from the contraception mandate have often marched out a parade of horribles: What if an employer objected on religious grounds to insurance coverage for, say, gallbladder operations? If truth be told, though, mandating gallbladder coverage would probably not raise the rhetorical temperature as much as the contraceptive mandate. In the gallbladder case, both sides might at least appreciate the poignant clash between powerful religious norms and otherwise-routine state regulation. But sex raises distinctly charged questions of authority. From long before the sexual revolution, the church and general culture have fought over control of the bedroom and resented each other’s pretensions to determine sexual norms.
The third and most general question about Hobby Lobby, though, is how it connects to broader contemporary debates about religion itself. We live in an age of “new” atheists. Meanwhile, theoreticians have increasingly asked whether religion is “special.” And many Americans have given up on institutional religion as the vehicle for their spiritual lives. I am not sure how much all this shaped the (overdetermined) hyperbolic tone of opposition to the RFRA claims in Hobby Lobby. To the extent that it has, though, that is unfortunate. For those of us who are legal pluralists, the relevant question is not only whether religion is “special,” but also whether or how the state is “special.” The humdrum details of religious liberty are grounded in jurisdictional claims arising out of the existential encounter of competing authorities. Both sides in that encounter can easily turn solipsistic. The result can be religious tone-deafness or, worse, the arrogance of a state that under all circumstances insists on having its own way.
Perry Dane is a Professor of Law at the Rutgers School of Law – Camden.
This piece was originally authored on September 12, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.