The SCOTUS Defers to Religious Belief

reuters-hobby-lobby-victory-photog-jonathan-ernstAs Presbyterian Blues has followed the Hobby Lobby case and others involving religious rights, special attention has been focused on, first, the core belief involved and second, the relationship of that core belief to the ultimate offense against religious sensibilities.  This is because it is not beliefs as such that are denied – the government does not say you can’t have religious beliefs about abortifacients –  but some resulting activity.  The Hobby Lobby case is not about coercing individuals to take abortifacients, but about the religious offense they undergo when others potentially use them.

This was a central issue in the SCOTUS decision, with the Alito majority opinion and the Ginsburg dissent taking different sides.  Hobby Lobby (and the other businesses) would have lost if the majority agreed with the dissent on that issue.

Simply put, the individuals in charge of the closely held corporations believe it is immoral to provide mandated coverage that enables employees to use abortifacients.  As the majority opinion describes it,

This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.

Rather than attempt to resolve this causation question, the majority opinion takes a deferential position: “it is not for us to say that their religious beliefs are mistaken or insubstantial.” It was enough that such a belief, i.e., a belief on what substantially enables others to act in an immoral way, is sincere.  And, because the belief was received as sincere, the HHS regulations had to meet a demanding test they failed to pass; Hobby Lobby wins.

The Ginsburg dissent acknowledges the sincere beliefs but goes further in exploring the connection of those beliefs to the offending activity:

.  . . the connection between the families’ reli­gious objections and the contraceptive coverage require­ment is too attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. ­…“[n]o individual decision by an employee and her physi­cian—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employ­er’s] decision or action.”

As pure reason goes, this is a strong argument. Ginsburg says beliefs themselves are not the proper subject of the court’s approval, but the connection between those beliefs and the ultimate acts that burden them is an objective matter the court may decide.

Whether the majority had the better of it as a matter of philosophical argumentation is less than clear but deference to religious beliefs is better than meddling in them. The result of the Hobby Lobby case – a fairly broad protection of religious rights – is a good result. Only time will tell if the analysis on this point will be a bulwark of religious rights or if Ginsburg’s dissent will re-surface in a majority opinion.


Filed under Courts, Free exercise of religion, Religious rights

10 responses to “The SCOTUS Defers to Religious Belief

  1. I hear you, and I hear internet monk. I just felt obligated to see this case up to the SCOTUS.
    p.s. Ginsburg has a better argument on “substantial burden.” Don’t tell anyone I said that.

  2. Richard

    OK, your secret is good with me; can you give me the address of your session? It sounds as if the Gov’t tubed its own case by providing alternatives for religious non-profits; the majority seized on that like a dog with a bone.

  3. Richard, the Wheaton case is basically the same as
    Notre Dame and Wheaton (and Sisters of the Poor) all object to filling out a form that exempts them from providing contraception. That seems like an extreme position even to this person who thinks Obamacare is a trainwreck.
    I have always held out hope that the SCOTUS rules more on the law than on politics, but the Hobby Lobby case has done some serious damage to my hope.
    So let’s review my position: I dislike Obamacare politically but agree with Ginsburg’s “substantial burden” legal analysis. I like the results of Hobby Lobby but think its reasoning is deeply flawed. Even my dog doesn’t side with me. Actually I don’t have a dog, but if I did it wouldn’t.

  4. Richard, it seems to me that religious belief is no business of the courts to adjudicate but causation is within the light of natural reason. So a court may not second guess whether a belief concerning contraceptives is correct but it may look at the link between the belief and the locus of the aggravation. So it’s a close connection (substantial burden) for the person herself to have to take them, and it’s a close connection to have the person distribute them or actively purchase them, but it’s a more distant link (and less substantial burden) if an employee of her own volition uses a mandated plan to purchase her contraceptives.

    One could believe there is a link between the fluttering of butterfly wings in China and the weather pattern in the Gulf of Mexico but it is also evident that the connection is attenuated.

    And, then, I do wonder about where this kind of thing stops. These cases are at least in line with some kind of Christian belief system, but the same deference will have to be shown to other beliefs, all while simply accepting the adherents’ belief system and their sensibilities as to aggravations that are causally distant.

    So as a matter of policy I think we should not be in a place where businesses have to fill out forms to exempt themselves. As a matter of constitutional law, the burden seems insubstantial.

  5. Richard

    I also wonder what “burdened in their religious exercise” should mean to Christians who subscribe to a theology of the Cross as opposed to a theology of glory. What type of burden are we talking here?

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