Religious rights in historical, theoretical, and international context: Hobby Lobby as a jurisprudential anomaly?

• Author: Strong, S.I.
• Position: Introduction through III. Religious Rights in Historical, Theoretical, and International Context, p. 813-859

ABSTRACT

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court's recent decision in Burwell v. Hobby Lobby Stores, Inc. has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This Article undertakes precisely that analysis by placing Hobby Lobby into a wider historical, theoretical, and international setting so as to determine whether the decision to grant a commercial corporation a religious accommodation is consistent with the rationales underlying religious rights. The discussion considers the work of key theorists in this field while also contemplating relevant principles of international and comparative constitutional law. In so doing, the Article seeks to determine whether the Supreme Court has remained true to established principles of religious liberty or whether Hobby Lobby has made the United States an outlier in this important field of law.

TABLE OF CONTENTS I. INTRODUCTION II. PRELIMINARY ISSUES RELATING TO THE DEFINITION OF RELIGION AND RELIGIOUS PERSONS A. Theoretical Concerns B. Practical Concerns III. RELIGIOUS RIGHTS IN HISTORICAL, THEORETICAL, AND INTERNATIONAL CONTEXT A. The Historic Importance of Religious Rights B. Current Approaches to Religious Rights-Constituent Elements 1. Nondiscrimination on the Basis of Religion 2. Freedom of Religious Belief 3. Freedom of Religious Practice IV. THEORETICAL JUSTIFICATIONS SUPPORTING RELIGIOUS RIGHTS A. Religious Rights Promote Civil Peace B. Religious Rights Minimize Alienation C. Religious Rights Further Personal Autonomy D. Religious Rights Promote Self-Definition E. Religious Rights Further the Search for Truth F. Religious Rights Constitute a Prudential Arrangement G. Interim Conclusions V. THEORETICAL JUSTIFICATIONS LIMITING RELIGIOUS Rights A. Religious Rights Violate the Principle of Neutrality B. Religious Rights Benefit Religious Beliefs Over Other Ethical Beliefs C. Religious Rights Allow Religious Persons to Become a Law Unto Themselves D. Religious Rights Result in Improper Scrutiny of Religious Beliefs VI. CONCLUSION I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion, and to settle the just bounds that lie between the one and the other. If this be not done, there can be no end put to the controversies that will be always arising ...

--John Locke (1)

1. INTRODUCTION

   The Founders of the United States were well-versed in political philosophy and held the work of John Locke in particularly high esteem, particularly in the field of religious rights. (2) Locke's experience with the violence and deprivation generated by nearly a century's worth of religious warfare in Europe provided wise counsel to those charged with creating a workable government for a religiously pluralist society, and his insights are as relevant today as they were when they were first written. (3)

   The United States is again in need of such wisdom, given the controversy surrounding the Supreme Court's recent decision in Burwell v. Hobby Lobby Stores, Inc. (4) The case was subject to extensive commentary before it was heard by the Court, (5) and the coming months and years will doubtless see a similar onslaught of debate about issues ranging from the majority's characterization of a closely held corporation as a "person" for purposes of religious rights to the proper interpretation and application of the pre-Smith jurisprudence to matters asserted under the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). (6) Unfortunately, these discussions may never provide a truly conclusive answer about the propriety of the decision, given the novelty of the plaintiffs' claim and the high degree of politicization surrounding the accommodation in question. However, there may be another way to assess the legitimacy of the decision.

   For example, it may be useful to consider the historical context in which religious liberties arose so as to determine whether and to what extent Hobby Lobby's newly enunciated rule is consistent with both the purposes of religious rights as well as past practices. (7) This type of methodology is in no way foreign to the five members of the majority, although they were unusually reticent about discussing historical issues in Hobby Lobby itself. (8) Instead, it was Justice Ginsburg, writing for the four dissenters, who raised the most pressing questions about the history and purpose of religious liberties. (9)

   Although Justice Ginsburg limited her historical analysis to Blackstone and early Supreme Court precedent, various commentators, most notably Michael McConnell, have advocated a wider historical and jurisprudential analysis of religious rights so as to take into account the philosophical underpinnings of the nation and the reliance of both the Founders and the Framers on legal and political principles enunciated by writers such as John Locke. (10) Indeed, McConnell has written that "the idea of religious freedom as our first freedom--both in chronological and logical priority" requires historical and theoretical analyses that "go far beyond the deliberations of the First Congress in 1789." (11)

   Other norms, including those that arise as a theoretical, comparative, and international matter, may also be relevant to the Hobby Lobby analysis, as suggested by Justice Kennedy in his concurring opinion. (12) Indeed, some commentators have found recent efforts by the U.S. Supreme Court to place its jurisprudence within an international and comparative context to be extremely useful in identifying whether and to what extent certain constitutional rights might [be] open for reconsideration ... based on their disequilibrium with international values." (13) A similar type of approach may be useful here as a means of overcoming certain "blind spots" or biases regarding these issues. (14)

   The aim of this Article, therefore, is to assess the legitimacy of the Hobby Lobby decision not through statutory or similar analyses but instead through detailed consideration of the majority opinion from a historical, theoretical, international, and comparative context. (15) In so doing, the Article intends to determine whether and to what extent the majority opinion either falls within currently established standards involving religious rights or appropriately extends the scope of religious liberty to include this particular claim. This latter analysis will be conducted by a review of the various purposes of religious rights to determine the extent to which the majority opinion can be said to fulfill one or more or those goals.

   The structure of the Article is as follows. The discussion begins by putting religious rights into historical, international, and comparative context. This analysis is found in Part III, which begins by providing a historical overview of the development of religious rights and the conflicts that those rights were initially intended to address. This Part then describes the basic parameters of the three types of religious liberties--nondiscrimination on the basis of religion, freedom of religious belief, and freedom of religious practice--from a comparative and international perspective and considers whether and to what extent the majority opinion in Hobby Lobby meets the relevant standards. (16)

   In undertaking this analysis, consideration is given to the law of both the United Kingdom and the Republic of Ireland, two countries that share a common legal and historical heritage with the United States. (17) Ireland and the United Kingdom are also relevant to this analysis because they can be legally or culturally characterized as "Christian nations" to approximately the same extent as the United States, despite an increasing amount of religious pluralism within their national borders. (18)

   Part III of this Article concludes that the religious accommodation granted by the majority in Hobby Lobby exceeds the scope of religious liberty in its currently recognized form and is therefore presumptively improper. (19) However, that is not the end of the discussion, since religious rights can change and evolve over time, and it is possible that Hobby Lobby simply represents one of these types of quantum leaps forward. (20)

   The Article therefore moves to a theoretical analysis, beginning in Part IV, which describes a variety of rationales that have been used to justify religious rights. The discussion considers five separate but interrelated concerns, including the desire to promote civil peace, minimize alienation, further personal autonomy, promote self-definition, and further the search for truth. This Part also considers the possibility that religious liberty can and should be supported not as a matter of theory but simply as a pragmatic arrangement.

   Part V contains a similar type of analysis regarding theories advocating the restriction or elimination of religious rights. Here, the discussion considers claims that religious liberty violates the principle of neutrality, benefits religious beliefs over other ethical beliefs, allows religious persons to become a law unto themselves, and encourages improper scrutiny of religious beliefs.

   Each of the theories presented in Parts IV and V is also considered in light of the majority, concurring, and dissenting opinions in Hobby Lobby to determine whether and to what extent the individual rationales are reflected in the various opinions. (21) If the majority opinion is consistent with one or more of the theories supporting religious rights...