More Hobby Lobby Thoughts

I can’t say I am surprised by the news and social-media reaction to Burwell v. Hobby Lobby. I just didn’t think my patience for it would be so thin. The smug part of me thinks that people should have to digest all 95 pages of the opinion before being allowed to comment. The merciful part would never contemplate such a cruel and unusual form of punishment. Hobby Lobby isn’t poorly written, mind you; it’s just written like every other Supreme Court opinion: needlessly long, unnecessarily footnoted, obscure in some parts, incomplete in others, and so forth. Apparently it’s a slow news week given how much press and commentary this case is attracting. It is, by several orders of magnitude, less groundbreaking and important — from a legal and policy perspective — than last year’s “gay marriage” cases or 2012’s “Obamacare” decision. Still, as several learned observers have pointed out, Hobby Lobby has a lot of symbolic purchase for both religious and non-religious Americans. The First Amendment’s (mythical?) right to religious liberty was not front and center in the case, but the concept was in play just long enough for all sorts of folks with all sorts of ideological dispositions to use an exercise in statutory interpretation as an excuse to ramp the culture wars back up. To what end? Probably not a good one, at least for American Catholics.

Several months ago Patrick Deneen, writing in The American Conservative, made a bit of a splash with his pre-decision commentary, “Even If Hobby Lobby Wins, We Lose.” Here are his closing thoughts:

I hope Hobby Lobby wins its case. But we should not deceive ourselves for a minute that what we are seeing is the contestation between a religious corporation and a secular State. We are seeing, rather, the culminating absurdity of what Polanyi called the “utopia” of our modern economic disembedding—the absurdity of a chain store representing the voice of religion in the defense of life amid an economy and polity that values turning people and nature into things. Our entire economy is an education in how to be “pro-choice.” What it most certainly is not in any way, shape or form, is about helping us to understand our true condition as embedded human beings.

To be honest, I don’t see the absurdity of a chain store — or any other interested party — “representing the voice of religion in the defense of life” in the American judicial system. In this particular instance, Hobby Lobby had the proper standing to challenge a particular facet of a very large package of regulations; it just happened to be that the challenge was being made on religious grounds (hence the centrality of the Religious Freedom Restoration Act to the case). The question of the American economy is a separate matter altogether. Without in any way excusing Hobby Lobby for trying to profit off of the publicity it has generated from the case, it’s important to keep in mind that it has largely been those with no skin in the game who chose to elevate the Hobby Lobby case as a mighty battle between religion and secularism. Really, though, all Hobby Lobby’s owners were interested in was making sure they didn’t have to comply with something they think violates their consciences. Pace Rorate Caeli, it’s a bit much to claim that Hobby Lobby’s owners went to SCOTUS over traditional Catholic moral teaching. They were only looking to be excused from supplying contraceptives which act as abortafacients.

Continuing on with Deneen’s thoughts for a second, I agree with him that “we lose” or, I should say, “still lose” after Hobby Lobby because nothing about that case, or any similar case which is likely to come up in the near future, changes our liberal socio-economic ordo. More importantly, though, for American Catholics the Hobby Lobby decision presents another opportunity for a distorted understanding of religious liberty and where we, as members of the Corpus Mysticum, fit into America’s larger cultural and political framework. A victory for religious liberty is not necessarily a victory of the Church. In fact, to treat religious liberty qua religious liberty as the great high principle Catholics ought to uphold at all costs obscures the reality that “religious liberty,” in its American context, means little more than the freedom to keep religion out of the public sphere, which includes the market. Catholics would be wrong to think that Hobby Lobby or any other court victory attained in the name of libertas religionis is a victory for Catholicism. Our public presence is still unwanted, and our beliefs — musty and dusty as they are — ought to still be kept hidden away behind closed doors.

One comment

  1. Having actually read the Hobby Lobby opinion, what I am most struck by is the subtext of sticking it to the current Executive Administration (aka Obama). It is almost as though the drafters of the opinion are spelling out in elaborate detail the following: “Well, gee, your predecessors, Clinton and the Congress of 1993, passed the Religious Freedom Restoration Act, and golly, it offers all ‘persons’ protection under that Act, and well shucks, it failed to define what the word ‘person’ meant. Well, then, we’ll just have to apply the Dictionary Act, or the very first statute in the U.S. Code (1 USC § 1), to determine that ‘person’ includes corporations. Now we’ve already decided that the RFRA applies to religious and general non-profit corporations, and we can’t think of any reason why it should apply to some corporations and not others, so we guess that Hobby Lobby and the other two corporations get a free pass on this one, boys.”

    Of course, left unsaid is the following message: “You morons, or your predecessors, failed to do a competent job of drafting the underlying FRFA. You know, even now, you COULD have amended the Act to define ‘persons’ in such a way as would have excluded Hobby Lobby from protection under the Act. Welcome to the wonderful world of unintended consequences. Or in other words, you made your bed, now lie in it.”

    Personally, I think the best thing for Catholic businesses or non-profit corps could do for themselves would be to take a good, hard look at 42 USC §§2000bb et seq., and see how it might benefit them. At least, until Congress figures out how to amend it to take the anti-regulatory teeth out of it, which I’m sure that they’re working on even as I chatter.

    Otherwise, I don’t see how this really affects ‘religious liberty’.

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