Hobby Lobby, corporate law, and unsustainable liberalism.

• Author: Hutchison, Harry G.
• Position: Response to Leo E. Strine, Jr., Journal of Corporation Law, vol. 41, p. 71, 2015 - III. Religious Liberty Cabined by the Growth in the "Secular State"? through Conclusion, with footnotes, p. 733-768

3. RELIGIOUS LIBERTY CABINED BY THE GROWTH IN THE "SECULAR STATE"?

   Any intelligible effort to define the proper relationship between government and religion is a thorny enterprise that has vexed jurists, clerics, and governments for centuries. (198) The idea of a truly secular society may emerge as a cultural artifact that surfaces in what Charles Taylor calls the "immanent frame." (199) Although the footings for this orientation may be provided by exclusive humanism, and while such a foundation may generate questions regarding the need for the sacred, (200) nevertheless, it remains questionable whether a truly secular society is possible. (201) Indeed, Remi Brague richly disputes the possibility of such a society, (202) and Strine declines to prove its existence. Nonetheless, Strine contends that the Hobby Lobby case, in combination with the Supreme Court's earlier decisions involving corporations, (203) improperly constricts government's capacity to extend the social safety net further. (204) Embarking on an effort to illustrate that "Hobby Lobby puts great pressure on corporate law itself," (205) he avers this pressure was not required by RFRA. (206) Presumably, Citizens United and Hobby Lobby combine to inflate the power of corporations through contestable interpretations of both the First Amendment and RFRA. Strine insists that such judicially cognized corporate resistance enables religious employers in particular to avoid the adverse effects of otherwise generally applicable social-progress law and thus poses an insidious threat to the nation's workers, the survival of the secular state, and responsible corporate law itself. (207)

   Presenting a fulsome parade of horribles, Strine reacts to this situation with resolute conviction. He asserts that the nation is unqualifiedly secular and accordingly must enforce secular principles. (208) This contention appears to be at variance with John Focke's conception of the state, (209) but it corresponds with Professor Farry Seidentop's question: have the people of 'the West,' inhabiting what some call the "post-Christian world," lost their moral bearings? (210) If Siedentop's question is answered affirmatively, it means that Americans, living in a nation wherein religious freedom was once of paramount importance, may "no longer have a persuasive story to tell ourselves about our origins and development." (211) Although such questions do not constitute an autopsy, it is possible that "[s]ome may welcome this condition, seeing it as liberation from historical myths such as the biblical story of human sin and redemption... [thus rendering the] Western narrative not only obsolete, but morally dubious." (212) Consistent with Siedentop's observations (but not his conclusions), (213) rather than being exercised by the importance of religious freedom, Strine is exercised by the prospect that "social progress" may be thwarted. Whether or not human and social progress is possible, (214) Strine repeatedly ties freedom to the elimination of necessity and human want. (215) Such contentions implicitly deny the notion of scarcity, a position held despite the fact that all of us, including employers and employees, have unmet needs. Apparently such claims are lubricated by allegations that private actors possess unwarranted market power, which surfaces when private individuals and entities pursue policies and private ordering that supplies benefits to them at the expense of the public interest. Although the reliability of market failure allegations remains debatable, it is manifest that Progressives, in responding to this hypothesis, have facilitated a rise in the size and scope of government, and accordingly, "the odds of escaping conflicts between religious groups and individuals on one hand and the state on the other are terribly low." (216)

   This remains true despite the fact that a quest for religious freedom motivated many of America's founders to seek protection for human liberty in the form of the Free Exercise Clause or other proposals. (217) On the other hand, powerful elites (218) within the Latin West react to such claims "with a shrug, believing that religion is simply a form of superstition representing the residue of an unwanted and intolerant meme" grounded in the presumption that religious zeal belongs to the primitive and uneducated while nonbelief or private belief belongs to the more advanced among us. (219) Progressive hierarchs seem primed to capitulate to this conceit no matter how much the founding documents of the United States accurately reflect a tension between secular values and religion, (220) perhaps because elites do not wish to see any barrier to the ambitions of the expansionary state. In our contemporary epoch, this tension reflects two stories--one of religious freedom (221) and the other of clashing values. (222) These stories arose in part due to deism, the intellectual movement that dominated eighteenth-century philosophy. (223) This tension signals a conflict between incommensurable principles that is lucidly reflected in the writings of Tocqueville and others.

   A short time after reaching the New World, Tocqueville was greeted by a flurry of conflicting impressions. (224) Arriving after Thomas Jefferson released his proclamation that the religion clauses created a wall of separation between church and state, (225) but perhaps contemporaneously with the evolution of the idea of separation between church and state less as constitutional doctrine commanded by the text and more as a form of anti-Catholic ideology, (226) Tocqueville traces this simmering conflict to its root: (227) "a nation characterized not by one but by two foundings, each of which is drawn from a radically different source--biblical religion and secular philosophy." (228) Evidently, Tocqueville's thesis anticipates the persistence of conflict for future generations. (229) While Tocqueville's perspective may not supply a sufficiently comprehensive perspective for all observers, (230) partly because he saw secularism as a distinct occurrence standing apart from its origins in developments that derived from religion itself, (231) it is arguably true that secularism "has gained ground at the expense of its rival." (232) Thus, he signifies the ascendancy of a lexicon dominated by such terms as individualism, tolerance, progress, neo-Darwinian atheism, and antireligious scientism. (233)

   Supplementing this analysis, Professor Steven Smith submits an examination of American religious freedom that echoes some of Tocqueville's observations. He finds that there are two distinct stories of American religious freedom. (234) First, he explains the standard story, one that is consistent with Chief Justice Strine's intuitions: "The standard story... tells us how, under the influence of the Enlightenment, the American founders broke away from the intolerance and dogmatism of centuries of Christendom and courageously set out on a radical new experiment in religious liberty." (235) This movement "valorizes the presumptive appeal of progress" and simultaneously "elevates one or more of the several explanations and descriptions of secularization." (236) As this story goes, "the [F]ounders adopted a Constitution that committed the nation to the separation of religion from government and thus to secular governance that would be neutral toward religion." (237) Yet these enlightened commitments were not immediately consummated until the Supreme Court "finally undertook to realize the promise of the First Amendment's commitment to religious freedom and religious equality," presumably embedded in the standard story. (238)

   By contrast with the standard story of religious freedom, Professor Smith offers a revised story, one that "begins in late antiquity with the emergence of a new religion--Christianity--with distinctive commitments to a separation of spiritual and temporal authorities and to an inner, saving religiosity that was of necessity sincere and voluntary." (239) Smith contends that "[t]hese themes, together with a commitment to openness and contestation between perennial providentialist and secularist interpretations of the nation, constituted the distinctive American settlement of the problem of religious pluralism." (240) On this account, "the American embrace of church-state separation ... is best understood not as radical innovation but rather as a retrieval and consolidation of these classical commitments (with a measure of easygoing pagan toleration mixed in)." (241)

   Taken together, both the standard (enlightened) story and the revised story agree that religious freedom is presently under threat, but the source of this struggle is in dispute. (242) The revised story--the one that is more consistent with Professor Smith's understanding of the American settlement-underscores James Madison's defense of religious freedom as a "right," which meant something more to him than we might mean today: "merely a privilege or immunity that govern merits may (or may not) choose to confer, or an 'interest' that should be assigned significant 'weight' in political or judicial 'balancing.'" (243) Religion, said Madison, was free in the sense that it was a domain "'wholly exempt from [government's] cognizance.'" (244) Madison reminds us that failure to respect this right in its jurisdictional sense signifies that "all other rights will likewise be imperiled" and that rights will generally be transmuted into nothing more than "appeals to the benevolence and good grace of the government," a move that would place employers' liberty interest in the crosshairs of the state. (245) Consistent with this instinct, "states that fail to protect religious freedom usually trample on other freedoms, too." (246) If Professor Smith's account of religious freedom and Tocqueville's understanding of the nation's founding is accurate, then Strine's adamantine conception of America as a "secular" state galloping...