Hobby Lobby and the Ideology of Discrimination

“If you go out in the market, you surrender your First Amendment rights?” So asked one incredulous attorney at a conference on “Dictating Conscience: Law as a Cultural Weapon.” Hosted by the Federalist Society chapter at the University of Pennsylvania Law School, the Monday event drew in noted legal experts and scholars to discuss the flashpoints of conscience and liberty in today’s culture and courts. As the course of the day made clear, the pressing crises in the field of jurisprudence center especially on the aims of politics and the purpose and extent of religious liberty.

Included in the day’s events was a panel discussion on the Supreme Court case Sebelius v. Hobby Lobby Stores, Inc. The case has become quite partisan: the Health and Human Services (HHS) mandates require that employers insure contraceptives, sterilizations, and abortion-inducing drugs for employees. While there are a few loopholes for certain religious organizations, the HHS measures are sweeping for businesses and non-profits alike.

U Penn’s professor of medical ethics and policy, Dr. Alexander Guerrero, laid out several legal issues in the Hobby Lobby debate. He reminded participants of the Religious Freedom Restoration Act (RFRA) test that “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person…is the least restrictive means of furthering [a] compelling government interest.” Of course, the challenge is that 1) the federal government believes it now has a compelling interest to ensure the sexual options of its citizens and 2) Hobby Lobby is a corporation that believes that providing insurance for abortifacients runs against its religious commitments. Guerrero worried that, in the case of Hobby Lobby, there may be “a small burden, but an excessive remedy.”

Brigitte Amiri, senior staff attorney with the American Civil Liberties Union (ACLU) Reproductive Freedom Project, insisted that the government had a compelling interest that was narrowly tailored. The HHS mandates are part and parcel of a women’s health and protection initiative on the part of the federal government. The mandates are intended to “eliminate disparities between men and women.” As Amiri described it, contraceptives allow women to be like men—incapable of bearing children after sexual activity. By mechanically avoiding this biological feature, women can continue to perform as usual in the workplace. Women achieve the same economic wealth and opportunities as men, and thus free birth prevention or termination allow “for [women] to be equal participants in society.”

Amiri voiced serious concerns about the supremacy of religious liberty. She recounted historical precedent in which religious beliefs were used as a shield of rationale to defend segregation, other forms of racism, and misogyny. “Does religious liberty just get to trump all?” she inquired, “Is that how it’s going to work now?”

The Alliance Defending Freedom (ADF) Senior Counsel Jordan Lorence clarified that RFRA encourages the “best governmental way to solve a conflict.” He joked that it seemed for many progressive activists, “religious liberty started last month in Arizona and then this case…No floodgates are going to open…RFRA’s purpose is to separate the wheat from the chaff [of extreme cases].” “The human agents that operate a corporation give direction, including a moral one,” Lorence furthered.

ACLU’s Amiri claimed that the objectionable drugs required in the mandates were not in fact abortifacients. Lorence strenuously contested this claim since the drugs exterminate fertilized eggs. Amiri responded, “They are called contraceptives, so they are not abortifacients.”

As the debate continued, Amiri stated, “If you enter the public square, you must play by public rules.” Guerrero, who seemed neutral on the matter of Hobby Lobby, broke in to suggest that the famous Elane Photography case was one of “obvious discrimination” and thus not protected by RFRA. The photographers had to take pictures at a same-sex ceremony and could not deny service based on religious convictions. Lorence quipped, “If you go out in the market, you surrender your First Amendment rights?”

Of course, the debate was not simply abandoned to the lawyers. Ed Whelan of the Ethics and Public Policy Center offered his incisive reflections during a dinner discussion. He worried about an “agenda” and even an “ideology of discrimination.” “Discrimination has become a full argument,” Whelan complained, “In jurisprudence, cases used to be  about ‘invidious discrimination.’” During the panel, Amiri had proposed a possible solution for Hobby Lobby: pay the government fines instead of employee insurance. Whelan noted that this puts religious employers at a great competitive disadvantage. Corporations cannot offer potential employees insurance, but still have to pay a sum to the government. Eerily, the federal government is “dragooning employers” for healthcare that conflicts and violates consciences. “Religion has become what pornography used to be,” Whelan worried, “Something that is unsightly, to be kept behind closed doors.”

Panel commentator Patrick Deneen may have offered the most sobering concern from a bird’s eye perspective. The Notre Dame political science professor hoped that Hobby Lobby would prevail in amid this “systemic challenge to conscience.” However, both sides of the debate rely on an ever-expanding subjectivity and self-creation. For Deneen (and most political thinkers before John Locke), rights are not a carapace that houses self-will and shields differences, but rather speak to duties and obligations that must be fulfilled. “Liberalism [in its classical and progressivist forms] isn’t neutral. It requires substantive commitments, including autonomy,” Deneen observed, “We are now entering a realm where the government is seen as the insurer of autonomy and must grow in power to achieve that end.” And in that proposed course of human progress, churches, families, and the whole web of ancillary authorities that make up life stand in the state’s way.