Today, the Supreme Court of the United States released its opinion in Burwell v. Hobby Lobby, the mostly widely covered (and perhaps important) of the many cases challenging the so-called “contraception mandate.” With the Supreme Court’s ruling in favor of Hobby Lobby, we are re-posting our original article, first published in May of 2013, and revised after oral arguments in March of this year.

See posts tagged Hobby Lobby for additional commentary.

On March 25, 2014, Hobby Lobby and Conestoga Wood Specialties stood before the Supreme Court of the United States to plead their case: as closely held corporations owned by evangelical and Mennonite families, they object to the Department of Health and Human Service’s “Contraception Mandate” on religious grounds, and they believe that the Religious Freedom Restoration Act entitles them to accommodations for their belief. ((The Religious Freedom Restoration Act (RFRA), passed in 1993 in response to the Supreme Court’s opinion in Employment Division v. Smith, states that—where a law “substantially burdens” a person’s religion—the federal government must accommodate religion unless it can prove that it has a “compelling reason” for not doing so. This is a stronger protection for the traditionally religious than the one I have suggested the First Amendment requires under Yoder, and I therefore think that RFRA does more than merely re-implement Yoder.)) Since then, commentators have been busily spilling their ink over what this case means and what the Supreme Court will decide. Much of that commentary, though, has missed the truly shocking issue that this case presents. This isn’t simply another collateral attack on the Affordable Care Act; it isn’t a case about gender-bias; it’s not even (believe it or not) a case about the Free Exercise of Religion under the Constitution. Quite the opposite, in fact—this case is about the establishment of a secular theology and the violation of religious self-regulation.

The United States Solicitor General made this crystal clear during oral argument, when he argued that the federal government is entitled to dictate the theological scope of religion. General Verilli candidly stated that Hobby Lobby should lose not because (a) contraception coverage isn’t a huge deal, or (b) the government’s interest in providing contraception is simply too compelling to overlook—positions that reasonable Americans committed to our Constitutional structure might disagree about; Verilli took the argument a step further. According to the Solicitor General, Hobby Lobby and Conestoga Woods Specialties should not even have standing to bring the lawsuit. Ever. They should be categorically excluded from the protections of the Religious Freedom Restoration Act and the First Amendment’s Religion Clause.

In his words, “once [Hobby Lobby] make[s] a choice to . . . incorporate as a for-profit corporation, [Hobby Lobby is] making a choice to live by the rules that govern [them] and [their] competitors in the commercial sphere.” Translated, that means that any person who works under a “for-profit” structure—even if they give away 96% of their profits for religious work, close on Sundays, play Christian music throughout their stores, publish Bibles, etc.—is barred per se from bringing a religious claim. Indeed, General Verilli even went so far as to say that, should the federal government require for-profit companies to pay for abortions, Hobby Lobby and others like them should have no legal recourse; they should be forced to shut up or shutter, without even a day in court.

Despite paying lip service to the notion on occasions like Religious Freedom Day, ((See Press Release, The White House, Presidential Proclamation – Religious Freedom Day (January 16, 2013), available here.)) the Obama Administration’s tumultuous relationship with religion liberty is no secret, and the extremity of this argument is reminiscent of the government’s position in Hosanna-Tabor—where the Solicitor General argued for the wholesale abolition of one of the “Ministerial Exception.” The Court rejected that argument, ((Indeed, even the Court’s staunchest proponents of federal power were taken aback and, in a rare demonstration of unity, the Supreme Court resoundingly responded, 9-0. Similarly, after the Solicitor General asserted that Hobby Lobby and Conestoga Wood Specialties should not have standing to bring a RFRA claim on the basis of their profit structure, even Justice Kagan seemed skeptical, asking “isn’t that an argument about merits, General? . . . I’m not sure I understand it as a threshold claim—that this claim is not recognizable at all.”)) but we should still be troubled by the emerging pattern of efforts to narrow religious autonomy in this country. Our Constitution’s First Amendment may guarantee “a wall of separation between Church and State,” ((Everson v. Board of Education, 330 U.S. 1, 16 (1947).)) but that guarantee will mean very little if the Administration succeeds in becoming the wall’s sole architect, thereby enclosing the Church in a cell of the State’s design.

If the Court accepts the Solicitor General’s position, it could have very far reaching consequences not just for Hobby Lobby and Conestoga Wood Specialties, but for the future of religious liberty writ large. The government’s position is that religion is defined solely by belief and ceremonial worship, and as such is a private matter with very limited public expression within temples, churches, synagogues, etc.—and even more limited expression in places like hospitals. ((Instructively, President Obama adopted this kind of language in the first sentence of his presidential proclamation on Religious Freedom Day in 2013, noting that “[f]oremost among the rights Americans hold sacred is the freedom to worship as we choose,” see The White House, supra note 5 (emphasis added).)) Under this conception, the wall between church and state essentially runs along the line between public and private life; the state regulates public life, while religion is left to organize a person’s private life. This understanding of religion, however, is too thin to account for a more robust (and traditional) understanding of religious practice.

No major religion understands faith to be a strictly private affair. On the contrary, one’s faith should impact all aspects of life, be it public or private. The Apostle Paul instructed Christians: “Whatever you do, work heartily, as for the Lord and not for men.” This imperative carries with it at least the possibility that work in which Christians engage is religiously motivated, and for 2,000 years that has included some for-profit employment. Indeed, Max Weber believed that this ethic gave rise to capitalism itself, and further, this seems to be what the Constitution’s First Amendment envisioned when it explicitly carved out a space for the free “exercise” of religion and not merely its free “belief.” ((A great deal more could be said about the free exercise of religion in the United States and the purposes behind its Constitutional protection. For now, it will suffice to note that almost all religions emphasize the importance of action (orthopraxis) in addition to the importance of belief (orthodoxy), and that the United States has respected dissenting religious practices in fields ranging from war [see United States v. Seeger, 380 U.S. 163 (1965)] to education [see Wisconsin v. Yoder, 406 U.S. 205 (1972)].))

As such, the government’s current approach to religion is deficient. Despite the fact that our Constitution separates church and state, the Obama Administration has, in effect, set itself up as sole judge and arbiter of what religion is and, by extension, of what religion is not. It has enshrined and codified its own personal theological positions, often over the objections of precisely those people and institutions that are religious. ((The Federal District Court of Eastern Missouri did this quite openly when the court held that the “contraception mandate” was not a “substantial burden” on the religious liberty of a Catholic employer despite the clear contention of the Catholic Church to the contrary. See David French, The HHS Mandate Isn’t a ‘Substantial Burden’ to Religious Liberty?, National Review Online, October 1, 2012, available here.)) The absurd situation perfectly illustrates Justice Souter’s observation that, “I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible” than “comparative theology.” ((Lee v. Weisman, 505 U.S. 577, 616-17 (1992).)) Unfortunately, the judiciary does not have a monopoly on such incompetence, and comparative theology is intimately implicated in deciding who counts as a “religious employer.”

Indeed, the government’s approach to religion has become a clinic on why the First Amendment bars government from “making laws respecting the establishment of religion.” The so-called “Establishment Clause” has been popularly imagined as a tool of the state meant to keep power-hungry churches in their place, but it is equally a tool of the church for keeping theologically inept bureaucrats from imposing their biases.Yet now, the federal government is arguing that for-profit employers per se have no religious claims because for-profit employment can have no religious dimensions at all. That is not simply a legal claim, it is a theological one.

I should note, though, that the current administration cannot be solely faulted for its mistake. Though religion continues to be a vital part of American life, the center of that religious life is shifting. Mainline Protestant denominations have been in serious decline for decades. According to the Barna Group, in 2008 15 percent of Americans associated themselves with one of the mainline denominations as opposed to over 30 percent in 1970. Even more significantly, 72 percent of those who remain within American mainline churches say they are more likely to develop their own religious beliefs than to adopt those taught by their church, which speaks to a stunning decline in the authority of these institutions. Though 73 percent of Americans still identify themselves as Christian, American denominational voices have lost much of their authority to define the religious beliefs of their members. As such, the definition of “Christian” (the relevant definition of “religion” for most Americans) has become increasingly murky. Where mainline churches once provided an authoritative core conception of American religion with some variation along the borders (where First Amendment litigation traditionally took place), their decline has given rise to a new religious authority—the individual.

This is completely unworkable for state purposes. Regardless of the wall of separation between church and state, the state still needs to have an idea of what is on the other side. In past decades, lawmakers could look to mainline structures for guidance on the location of America’s religious core, even if the precise borders remained hazy. As those institutions fail and religious consensus fades, however, lawmakers are left increasingly in the dark. They have lost confidence in traditional institutions to regulate the religious activities of their own members, but alternatively are faced with the prospect of negotiating with 315,000,000 separate religious “institutions.” In an environment like this, is it any surprise that the Department of Health and Human Services felt a burden to provide its own definition for religion?

Even acknowledging the failures of America’s religious institutions, though, this cannot justify the Administration’s devious efforts to put religion under the government thumb. If separation of church and state is to mean anything, it must surely mean that the state cannot regulate the church by defining the very scope of its influence. Practically speaking, I certainly believe that exemptions like the one at issue in this case should be applied broadly (indeed, I believe RFRA demands this), but we should all be concerned by federal attempts to categorically deny an entire class of American citizens religious protections. In the short-term, this may create a frustrating situation for a government that feels limited by the failings of current religious structures; but long-term resolution of this crisis in American religion can only come from the church’s side of the wall and, as such, we need to repair religious institutions, not define them out of existence. Law and prudence dictate that only God and church define religion, not the state, and certainly not General Verilli.