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

Author:Strong, S.I.
Position:IV. Theoretical Justifications Supporting Religious Rights through VI. Conclusion, with footnotes, p. 859-889


Over the years, courts and commentators have developed a wide range of theories supporting the protection of religious rights. (270) Unfortunately, the indiscriminate and sometimes conflicting use of various rationales has resulted in a body of jurisprudence that can at times appear disturbingly ad hoc, (271) This problem is particularly acute in the United States, where the unique structure of the First Amendment has generated constitutional tests, which often lack internal consistency. (272)

Problems can also arise as a result of the need to balance individual religious demands against other rights and interests, which may be both fundamental and incommensurable. (273) Some commentators believe that these traits make it impossible to conduct a determination of religious rights fairly and impartially. (274) Fortunately, other commentators have taken the view that such analyses are indeed possible. (275) Indeed, a number of models currently exist to assist with the task of balancing competing rights and interests. (276)

One of the more helpful approaches has been identified by Cass Sunstein, who advocates the creation of "a highly disaggregated picture of the consequences of legal rules, a picture that enables the judge to see the various goods at stake." (277) Each situation is then placed into context so as to avoid making decisions in the abstract. (278)

This Article adopts Sunstein's approach by deconstructing the rationales underlying religious rights and determining whether and to what extent those rationales describe the majority and dissenting opinions in Hobby Lobby, (279) This type of analysis is perhaps the only way to evaluate the relative merits of the opinions in this dispute.

Close examination of the literature and case law in this field suggests that most authorities rationalize religious liberty on the basis of five separate but interrelated concerns. Thus, religious rights are considered theoretically justifiable to the extent they promote civil peace, minimize alienation, further personal autonomy, promote self-definition, or further the search for truth. Some commentators believe it impossible to identify any overarching theoretical construct but would nevertheless support religious liberty as a prudential arrangement. Each of these propositions will be discussed in more detail below and then considered in light of Hobby Lobby to determine whether and to what extent the majority decision reflects each particular principle. (280)

  1. Religious Rights Promote Civil Peace

    The best-known rationale supporting religious liberty holds that protection of religious beliefs and practices promotes civil peace. (281) Although this justification was first enunciated during the time of Locke, (282) contemporary theorists also recognize the role that religious rights play in encouraging social stability, particularly in cases involving a potential conflict between civil and religious duties. (283) The thought is that respecting religious liberties minimizes the possibility of civil disobedience because those who would otherwise feel religiously compelled to act contrary to the particular law are allowed to follow the dictates of their conscience. (284) Protecting religious liberty is also believed to encourage people to adopt religious values and practices that support social order. (285)

    This justification for religious rights views religious actors as more of a threat to the state than persons who are motivated only by political concerns. This conclusion is apparent in statements by Christopher Eisgruber that "three features--resistance to persuasion, cohesiveness, and resistance to compromise--make religious factions an especially virulent threat to the vigor of republican politics." (286) David Rapoport similarly argues that while any dissatisfied citizen can resort to civil disobedience, religious persons or groups may be more likely to do so because "[a]ll major religions have enormous potentialities for creating and directing violence." (287) Rapoport also believes that "[wjhen a religious justification is offered for a cause which might otherwise be justified in political or economic terms, the struggle is intensified and complicated enormously." (288) Nations that provide protection for religious beliefs and practices thereby minimize the number of conflicts between the individual and the state.

    The scope and intent of these sort of protections are also embodied in Michael McConnell's definition of the "accommodation" of religious belief and practice as involving "government laws or policies that have the purpose and effect of removing a burden on, or facilitating the exercise of, a person's or an institution's religion." (289) An accommodation can also be described as an exemption from a generally applicable rule and can be used to refer to any action that is intended to give effect to individuals' religious claims, desires, demands, or interests. (290)

    Not everyone agrees that religious accommodations promote civil peace. Ellis West, for example, believes that granting religious accommodations actually increases "ill will and divisiveness" by provoking jealousy in those who do not receive similar benefits. (291) John Garvey has identified a different problem with rationales based on social order. He notes that the civil peace rationale assumes that "we can only have civil peace through religious freedom," when in fact "there are other ways of avoiding strife: repression is one of them. Unless freedom has some other good points, there is no reason to prefer it to repression." (292) Therefore, Garvey suggests that society must justify religious liberty on grounds other than the desire to promote civil peace. (293)

    Garvey's point is valid, but only to the extent that repressive measures effectively quash all dissent. (294) While such tactics may prevail in the short term, it is unlikely that they can withstand internal and, in an era of global concern over human rights, external pressure toward moderation in the long run. Indeed, international responses to recent attacks by members of the Islamic State of Iraq and Syria (ISIS) and the Boko Haram suggests that widespread acts of religiously motivated violence will not go unaddressed. (295)

    Turning to Hobby Lobby, the members of the majority did not seem to be thinking about avoiding social unrest when they decided to allow three closely held corporations to refuse to provide health insurance that included coverage for certain contraceptives. (296) Instead, most of the majority's analysis focused on the corporations' economic rights and their ability to participate in commercial society. (297) Although a number of commentators have taken the view, with Montesquieu, that entities that are commercially engaged are unlikely to engage in violent actions because of the negative effect such behavior would have on their business interests, the shareholders of the plaintiff corporations could still engage in commercial activities if the corporations were not granted this particular accommodation. (298) Furthermore, the shareholders could engage in commercial activities if the shareholders were organized as a religious nonprofit. (299) Thus, the majority decision in Hobby Lobby does not appear to be based in a desire to promote civil peace. (300)

  2. Religious Rights Minimize Alienation

    A second rationale supporting religious rights involves the desire to minimize religious people's alienation from wider society. Numerous commentators have claimed that religious people are excluded from the political realm by virtue of the secular nature of many Western states. (301) However, religious rights are seen as assuaging religious people's fear of being "second class citizens" and minimizing any sense of alienation that religious people may feel. (302) This justification is often linked to the concern about civil peace, in that extreme alienation may lead to "destabilizing, antisocial activity, including violence." (303)

    Christopher Eisgruber and Lawrence Sager view the problem of alienation as associated with the "predominance of groups in religious practice," since "[i]t is the group identity of the faithful that mobilizes pity, distrust, or even hatred for those who are not believers." (304) While Eisgruber and Sager see alienation as arising from the beliefs espoused by the religious group, alienation can also arise as a result of actions taken by the religious majority that lead minority religious believers to perceive themselves as being invisible in their own societies. (305)

    Members of religious minorities are often more closely attuned to these sorts of issues than members of religious majorities, since those who adhere to majority religious beliefs often overlook the extent to which those values and practices are reflected in existing legal norms. (306) For example, laws concerning marriage and national days of rest typically reflect the majority's religious beliefs, thus creating the potential for conflict with the values and practices of minority faiths. (307) Labeling the majority's practices as "merely" cultural belittles their symbolic importance and ignores the very real burdens that fall on those whose beliefs and practices differ. (308)

    Some types of alienation are experienced regardless of whether the beliefs in question are part of a majority or minority religious tradition. For example, framing religiously motivated decisions as "unreasonable" (309) or "non-rational" (310) tends to alienate religious persons of all faiths.

    The concern about alienation appears most relevant to individuals or groups who wish to exist within the larger society. Alienation appears to be less of an issue for people like the Amish, who prefer to opt out of the wider social sphere and create their own religious communities.

    Although alienation could be a relevant concern in Hobby Lobby, it is...

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