The Bishop and the Butterfly: Murder, Politics, and the End of the Jazz Age
    Doctor Cleveland's picture

    Religious Liberty vs. Hobby Lobby

    Let's start with one thing. It is not acceptable for my boss to make my religious decisions. It is not acceptable for your boss to make your religious decisions, or for somebody else's boss to make religious decisions for them. Your religious freedom is yours, alone. It does not belong to your employer, to your landlord, or to anybody else. The deepest stupidity of the inane Hobby Lobby decision is that it uses religious freedom to let your boss take away your religious freedom. That is not acceptable. And it is not sustainable. Five allegedly rational Supreme Court justices have just opened the door to vicious religious conflict. Because letting your boss make your religious decisions is not acceptable, and over the long run people will not accept it.

    I will admit that the Supreme Court and I come at First Amendment questions from different directions (although with a shared commitment to the First Amendment's value). They look back at it from the present day, viewing the Constitution as a point of intellectual origin. They understand its context and immediate antecedents, but their historical narrative is about the creation of the Constitution and the past two centuries of its interpretation. My scholarly work forces me to look forward to the Constitution. The writers and books I study are from an earlier period, inhabiting a world in which the Constitution is not yet imaginable. So I have gradually come to see the Constitution in terms of what went before, to see it as a set of codified solutions to particularly ugly historical problems. I don't have to imagine where we would be without Constitution or the Bill of Rights, because I have all too clear a picture of what the world without them was like.

    The 16th and 17th centuries were periods of ferocious religious warfare, complete with terrorism, persecution, assassination, torture, inquisitions, and massacres of civilians. I use none of those terms figuratively. Kings were stabbed to death by religious fanatics. Religious leaders were burned alive in the public square. Conspirators plotted to blow up government buildings, to overthrow regimes. Women and children were beaten to death by mobs of their own neighbors. All of this was done by Christians to other Christians, and no denomination's hands were clean. If you look back at this history hoping to find that your own church behaved like the good guys, you will be sorely disappointed. Every existing Christian group played both the villain and the victim, more than once.

    The hundred years or so before the Constitutional Convention saw the European religious conflicts modulate somewhat, so that religion became one volatile and dangerous wild card in larger games of international conflict and domestic factionalism. But religious intolerance and aggression did not go away. The settlement of the Thirteen Colonies was partly driven by the need to escape various forms of sectarian prosecution. And while the wars of religion were no longer the main show, they were certainly not gone. The last armed revolt aimed at putting a Roman Catholic on the English throne was in 1745. Benjamin Franklin was 39 years old at the time.

    When I hear 21st-century American Christians complain about being persecuted for their beliefs, I am caught between laughter and disgust. Those people have no idea what real persecution is. And the danger to Christians has never been the secular state. The greatest danger to Christians' religious freedom is always other Christians. Secular government was devised to protect Christians from one another, and it is the only thing that has been shown to work.

    The First Amendment guarantees free exercise of religion, and prohibits the establishment of any favored religion. The current religious right loves one clause and hates the second. They want freedom of exercise. They hate that the Establishment clause enforces a level playing field, and prevents one religious group's exercise from infringing upon others. Enormous bitterness is directed toward Jefferson's phrase "separation of Church and State," with endless tedious reminders that Jefferson's phrase is not in the First Amendment per se (but only a clear record of, ahem, original intention). But the fact is, you can't have one without the other. Religious freedom is only possible if the officially-secular state enforces a neutral playing field.

    If we allow various Christian groups (or hypothetically other groups, although only Christians have that kind of political muscle in the United States) to use political or economic power to push their version of Christianity on others, the live-and-let-live "free exercise" arrangement falls apart. And then push comes to shove.

    If certain parties are allowed to exercise their religious rights so vigorously that other people aren't free to make their own religious decisions, then no one can afford religious tolerance anymore. If my neighbor is permitted to impose his religion on me, then my only recourse is to drive everyone whose religion I disagree with out of the neighborhood. If the principal of the public elementary school has religious freedom to proselytize my (hypothetical) children, then I need to discriminate against certain potential principals on religious grounds, eliminating people whose beliefs I don't share. If a Mormon governor is liable to ban coffee shops, then I can no longer vote for a Mormon candidate. If people are using business to push religion, I can no longer do business with people of incompatible religions. That's a very bad outcome, but it's also the inevitable outcome.

    If the government does not act as a referee, religious toleration becomes impossible, unworkable. If individuals are allowed to use whatever leverage they happen to have to coerce their neighbors or employees or tenants into conforming with their own religious beliefs, what you create is a competition in which people are forced to keep amassing more and more coercive muscle. The only way to keep your neighbors from jamming their religion down your throat is to organize some coreligionists and jam your religion down the neighbors' throats. That turns into persecute or be persecuted: a swift, ugly, and distinctly ungodly cycle.

    What five of the Supreme Court justices have decided in Hobby Lobby is that religious coercion by non-government agents is actually a guaranteed right, and that the government cannot step in to prevent it because that would limit the coercive party's right to free exercise. That is a mind-bogglingly stupid position. And it ultimately leads back to the bad old days of sectarian infighting, where the only way to protect your own religious liberty was to trample everybody else's. I don't want any part of a country like that. I been there before.


    Thank you.  You just gave me good reply to my southern friends on this. 

    I'm from the south and I agree with this piece. Could you be less broad in  your geographic references? What are your friends, who happen to live in the south, saying that you'd like to refute? 

    Never thought of it this way but the Constitution is what makes is difficult or nearly impossible to translate ancient and Shakespearean tragedies into a contemporary American setting.  As much as House of Cards might seem Shakespearean, most of the court intrigue happens within the confines of the Constitution and even in a show like that it's the moments where they slip into murders and intimidation, allowing the occasional Vince Foster storyline into the frame, that the show becomes absurd.  It's not that we're any less willing to draw and quarter a King than we were before it's that, within the legal framework we've devised, there are better ways.  You won't wind up in the stockade for demanding a look at a birth certificate.

    Yes. Put it this way: what's going on in Henry VIII's marriage affects everybody. It may even cost people their freedom or their lives. But nobody can do anything about it. What happens inside Bill Clinton's marriage doesn't actually affect anyone but Bill, Hillary, and Chelsea. When we stick our noses in that, we're just distracting from the real work of governing.

    This is one of the reasons that gangster epics like The Godfather get called Shakespearean; because those groups are violent and undemocratic, you can tell the old-fashioned dynastic stories where family, politics, and warfare are tightly bound together. 

    Excellent!  Exactly!  Spreading this far and wide.  Thank you, Doc.  Thank you.

    Great post. Yet sectarian infighting is exactly what the right wing media/Wall Street/GOP oligarchy desire. They hope it never ends.

    Stoking sectarian infighting among those they fly over doesn't require raising taxes, in fact it makes good cover to further fleece the poor and middle class by cutting their benefits and raising their taxes. How long this can continue is anyone's guess.

    Thanks.  This is terrific, in both the modern and the old-fashioned definitions of the word.  Here's where the knowledge of useless old early modernists like us actually proves useful.  Ginsburg may not have gone far enough in her dissent.  Your analysis here makes a powerful implicit case for universal heath care as a right of citizenship & guaranteed by the state, because (as you note) the secular state is the only modern institution that has proved effective in guaranteeing individual and minority rights.

    Our system of employer-provided health insurance is essentially hierarchical and paternalistic.  Our access to health care should be contingent neither on the status of our domestic relationships (am I married, separated, or divorced?  Am I a teenage runaway, or a kid who doesn't want her parents to know that I'm on the pill?  Etc.) nor on the religious whims of our employers.  One of the big problems with Obamacare is the fact that it continues to involve employers in health care at all.  It's baked into the cake that employers and the state will continue to fight over their rights and responsibilities w/r/t the health insurance they subsidize.

    (Who want to bet on what will happen when a Muslim-owned "closely held corporation" gets sued by its female, transgender, and/or queer employees on the grounds that sex and sexual orientation discrimination is an honestly held religious belief?)

    I wonder if "Honor Killings" will float the Supremes' boat?  Since it is usually for sexual stuff they will probably be just fine with it. 

    I'm not absolutely sure about this, Historiann, but I suspect that even if religious beliefs were being substantially burdened, nonetheless the various laws forbidding discrimination would pass muster because they both advance "a compelling government interest" and represent "the least restrictive means of furthering that compelling governmental interest."  That's the standard set by the Religious Freedom Restoration Act, which is the law that the Supreme Court interpreted and applied in the *Hobby Lobby* case--misapplied, in my view.  (The Free Exercise Clause of the First Amendment was involved only very, very indirectly.) 

    An addendum, written after reading posts over at “Prawfsblog”: state laws against discrimination are unaffected by the Hobby Lobby decision because the Supreme Court has ruled that the federal Religious Freedom Restoration Act does not apply to state laws.  The transgender and queer employees you mentioned would seem to be in good shape in Colorado, out of luck in Nebraska.  Obviously the Free Exercise Clause of the First Amendment applies to the states via the Fourteenth Amendment, but the Supreme Court’s interpretation of the Free Exercise Clause means that plaintiffs like Hobby Lobby or your hypothetical Muslim-owned corporation cannot prevail on Constitutional grounds (see Justice Scalia, writing for the court in Employment Division v. Smith, 1990).  Don’t know about cases in which federal sex discrimination law would be pitted against the Religious Freedom Restoration Act; surely, though, Title VII carries out an important government objective in a way that isn’t very restrictive. 

    The greatest danger to Christians' religious freedom is always other Christians 

    That's true where other Christians are the only people around to pose a threat, but the history of other times and places has shown that pagans, Muslims, and various secular regimes - communists, fascists, occasionally socialists - can be equally dangerous to Christians. On the other hand, many modern states with established churches have also succeeded in quelling religious persecution. So given the broader history of toleration, I see little evidence that even disestablishment is necessary to stop Christians from oppressing each other, no less preventing all sub-political associations (or perhaps your objection is only to economic associations here?) from unofficially "establishing" religion within their association.

    In the Hobby Lobby case in particular, I don't follow your argument that the decision permits your boss "to make religious decisions" for you. Which religious decisions can now be made for you?


      Is the decision to get contraception--or to demand that your employer pay for it--really a religious decision?  It is the decision of church-affiliated companies not to pay for it that is religion-based. I'm not eager to force people to act against their conscience, unless they are violating someone's rights. I'm not convinced that having our employers pay for our contraception is an inalienable right. It's not like refusing to cover someone's surgery or chemotherapy.

    Health care is part of an employees pay. There's a long history of government decisions, some good, most bad, that led us to this place, rules, regulations, tax incentives. The employer is going to pay for their employees contraceptives no matter what the Supreme Court decided. Either with their wages or their health care. Its no one's business how an employee uses their pay whether that pay is their wages or their health care. How about this? If an employer doesn't want government regulation of health care they can give up the tax breaks.

    For much of our history corporations were formed for large projects, like digging a canal, or a dam, or laying miles of rail. They were formed for a limited period of time, 10 to 20 years, and then dissolved. Now days most corporations are registered in Delaware and last forever. Why is that? Because Delaware decided to cash in on registering corporations by having the easiest and least regulated market. Here's one idea. Any corporation that wants to sell a product across state lines must register their corporation on the federal level, with  federal regulations. They want limited liability and all the other benefits of incorporation there should be a cost.

    PS. Here's what I don't get. If the corporation is sued or cannot pay its debts the owners, shareholders of the corporation, will claim they are not the corporation and are not legally responsible.  But when it comes to paying for health care suddenly they are the corporation and their religious values must be upheld.

      I don't know; contraceptives seem to me to be part of our lifestyle choices, which may put them in a different category than treatment for medical conditions.

    "Lifestyles choices." Ah. So, the issue is that you morally disapprove of this medical procedure.

    But many women use contraceptive medications for medical reasons. The birth control pill is routinely prescribed for ovarian cysts, and many women use it to regulate their menstrual periods. In fact, there are celibate women and lesbians who are on the pill.

    But it goes to my point that you consider an employee's "lifestyle choices" to be subject to the employer's decisions.

    And it is mind-boggling that you consider the decision to begin a family, the most important decision that anyone can make, a "lifestyle decision" that can be made subject to the religious leanings of one's employer. Your boss certainly does not get to decide when you have a baby.

      Is it your boss deciding when you have a baby, or saying that it isn't his or her responsibility to foot the bill if you want to have sex without getting pregnant?

    Would treatment for lung cancer also fall under part of our lifestyle choices?

    What a silly ignorant argument.  There is maintenance and upkeep on lady parts. That is not life style but biology. It is not religious either in choice.  It is a matter of choosing what is best for the set of lady parts that you have. It keeps us healthy and we live longer. Contraceptives are used to treat medical conditions.  Some women have conditions that if they get pregnant they are at risk dying. I can probably spend the next hour listing medical reasons for the use of contraception.  Saving women's lives and keeping them healthy is the reason why this ruling will not stand very long. This ruling hits too close to private lives and it is not being ignored or will be forgotten until it is changed. 


      I am ignorant. If contraceptives are being used to treat diseases, that is a different matter from using them to do the nasty without getting pregnant. Perhaps a church wouldn't object to using them to treat ovarian cysts, since the Vatican objects to using them to interfere with the freedom of the sperm to do its business.

      People are getting lung cancer as a result of choosing to smoke, but there is some difference, as pregnancy usually isn't going to kill you, and it isn't considered a disease.

    Are you a physician, wait I know the answer to that, that answer is no. You seem to be intimating that people only get lung cancer from smoking.   Lung cancer is not only a result of smoking, it could be the result of exposure to a whole host of cancer causing chemicals, asbestos, chromium, others are butadiene, formaldehyde, cadmium and nickel. People who work  in many industrial fields have to minimize their exposure for reasons, they wear safety gear for reasons. 

    But I do have a serious question for you, are you saying you would deny insurance coverage from a smoker who got lung cancer? Do you believe that to be the moral position?

      When VA connected lung cancer to "a lifestyle choice", I thought he was talking about people getting cancer from smoking.  His question doesn't make much sense otherwise.

      I would not deny insurance coverage to  a smoker who got lung cancer.  My point was that treatment for lung cancer--and VA is the one who brought up cancer, not me-- is different from birth control.

    The majority of female Christians feel that businesses should cover birth control. Didn't the five guys upholding Hobby Lobby's position send a message that the morals of these women are lowers the those of the owners of Hobby Lobby?

       I don't think so. They just sent a message that they don't see a constitutional right to have birth control covered by your employee medical plan.

    I think you are missing the larger point. In "Citizens United", the court's  decision said that the free speech power of corporations trumped the free speech rights of individuals. In the Hobby Lobby case the court decided that the religious belief's of a corporation was more important than the religious beliefs of individuals. The power in both situations belongs to the corporation.

    The Supreme Court has the country slouching towards Gomorra The powerful are allowed to have an even louder voice in the political arena. The religious beliefs of a corporation does not have to be supported by science,. A worker contributes to the bottom line of a corporation, but is denied benefits supplied by other corporations with a different sense of what is moral.  The particular religious beliefs of the corporation rules the day. The corporation has the Constitutional right to impose its religious beliefs on the workers.

    An employer's religion rights ends when it is causing damage to it's employee's rights to health care.

    In all the brouhaha over religious affiliates having to provide complete spectrum of women's health, Obama made and exception for them. The insurance TP's was then made responsible.  That left them footing the bill when there was no funds set aside for that.  These are agents that sell insurance and process the billing.  Employer's that are exempt to pay for these health treatments, may find it difficult to buy insurance in the market place. 

    There will be other problems with this ruling that will surface.  The reason is that the insurance industry is a very complex system that these judges don't have the knowledge to understand. These judges over stepped with their ruling based on magical thinking of their narrow ideology and not all the dimensions and facts. Eventually the political branches of the government is going to have to assert their powers and fix the messes these judges are creating. Like Dr. Cleveland says this ruling is not sustainable.    

    Food for thought on certain "lifestyle choices":

    War, famine, poverty and oppression of the workers will continue while woman makes life cheap. They will cease only when she limits her reproductivity and human life is no longer a thing to be wasted.

    --Margaret Sanger

    And yes, I think Paul VI should have put that in his papal pipe and smoked it for a while. If there's one thing that separates first world human dignity for most citizens from the hellish third world life of people used as chattel, time and again it's shown that it's easy and inexpensive access to contraceptives for women. It's a public health issue, pure and simple. And one that's a no brainer because unlike with response to a plague or something, or someone who doesn't believe in getting blood transfusions, nobody is being forced to take anything. It's just a tax. I don't like paying for military boondoggles, it's against my "religion," so to speak; the I.R.S. still makes me do it, though.

    SCOTUS took an activist role in a Presidential election. They have moved on to gutting unions, and granting corporations more power than individuals. The respect and trust in this court is in the toilet. The low approval was recording in early June before the Hobby Lobby case.

      I'm not sure its that simple, because birth control isn't the same as treatment for disease. Of course, it is the same if you're taking it to treat an ovarian cyst.

     I don't know if the SCOTUS decision is right or not; my uncertainty sets me apart from the other folk here, who seem quite certain. There are times when people shouldn't have to do things that go against their conscience; there are other times when they should. I'm not sure how these things should be decided. I would be glad if our taxes weren't paying for the military though.

    The point I made above Aaron is exactly that; Lung Cancer while it can be caused by a lifestyle choice, it also isn't caused by a lifestyle choice and I believe that was VA's point as well. I could be wrong, and he can correct me on that.

    Listen up, men have no business involving themselves in our health issues, because clearly you have no idea about our health. That is the point, just like those 5 dudes, you have no clue as to why a woman would need a little pill that also prevents pregnancy. It's annoying to watch you, someone who knows nothing about women's health make misinformed claims

    I would say Viagra is a lifestyle choice,  and yet Hobby Lobby loves the peen, so that little blue pill stays.  I'm pretty sure if god makes your penis flaccid, it's supposed to be flaccid. You know, your lifestyle choice should not be paid for by me. 



    I'm sure most men take that blue pill for pulmonary hypertension.


    No, it is not simple at all. Just trying to get up to speed on the decision just to follow the conversation, I find I still have more questions than answers like:

    1) whether or not Hobby Lobby was objecting to all contraceptives or only those marketed as emergency contraceptives known as Plan B and Ella which have been marketed for their abortifacient properties.

    2) whether or not it knew its pre-Obamacare plan covered those.

    But most of all I wonder why so many are letting Hobby Lobby set the terms of argument that it is an infringement of its religious-freedom instead of an infringement of every employee's basic freedom when the companies they work for get to call health insurance and other benes employee compensaton but then only they get to decide on what it is spent.

    More people need to be disabused of the notion that employer-provided benefits are something separate from their wages because how much those benefits cost can have a seriously effect on base pay rates.

    This case was a great opportunity to at least make that point. So far I have not seen anyone doing so.


    From MotherJones, Supreme Court has ordered review of lower court cases where ANY type (20 mentioned) of contraception is objected to by a boss touting his religious freedoms:

    Less than a day after the United States Supreme Court issued its divisive ruling on Burwell v. Hobby Lobby, it has already begun to toss aside the supposedly narrow interpretation of the decision. On Tuesday, the Supremes ordered lower courts to rehear any cases where companies had sought to deny coverage for any type of contraception, not just the specific types Hobby Lobby was opposed to....In both instances the Sixth Circuit had rejected requests from Catholic-owned businesses that sought to exempt the companies from offering insurance that covered any of the 20 mandated forms of birth control.

    Unending 24/7 intensified partisan rankling over women's reproductive parts, for years (decades?)?

    While the country sinks into the abyss of deadlock, dysfunction, crumbling infrastructure, a shrinking middle class?

    And the free speech election financiers on Wall Street gin up the next economic crash, from which they will have no religious objection to being rescued by taxpayers?


    I am afraid the SC has woke up a sleeping giant.  

    Public health is not the same thing as treatment for disease, though it can include that. It's about having a healthy public. Sanitation, clean water, proper building codes, population control by government provided carrot/benefit for help with family planning. Not a stick, a carrot.

    I know you're smart enough to know the social health stats on like, unwed teenage mothers. And things like sustainability.

    The vast majority in this country do not want to see everyone breeding like un-neutered pets, nor do they want to see lots of 14-year-old mothers, and do not believe abstinence is enough to prevent that from happening. Most of them have heard about what it's like in, say, India, or Dickens' London, and would prefer not to go back to that kind of thing here. They'd like to see big families happen by choice, not by lack of ability to plan.

    Would you find it reasonable to have a religious objection to a country with low population giving tax credits for having more children? If not, why is this current objection reasonable under a religious freedom explanation?

    Again, if having taxes pay for war can't be avoided by religious or moral objection, why should this birth control subsidy be able to be avoided? The majority of people in this country want birth control easily available and affordable, heck the majority of Catholics in this country do. It's not even a "moral majority."

    Speaking of India, if something like this can stand, why can't Hindus in the U.S. allow cows to run free on urban streets? Rule of law.

    Yeah, religious minorities are protected from majority tyranny. But nobody is forcing anyone to run a business the size that rule of law says has to offer health insurance to employees. If their religion doesn't agree with the rules for running a business that size, they should chose another way to make a living. You don't see many Amish electricians ...

      Your argument is reasonable. My doubts have to do with whether birth control is in the same category as medical treatment or building codes. Maybe it is.

       I haven't done any research on the effectiveness of abstinence, so I should get on that. I remember that in the 90s one abstinence program, the Grady program, was touted as having some effect. But part of its purported effectiveness was in getting people to use contraception.

      I actually would be receptive to exempting people from paying taxes for the military. But I want to abolish the military, so I'm biased.

      I'm here as anonymous because I'm on someone else's computer, and I can't seem to sign in on it.

    Doctor Cleveland, isn't your biggest objection to the Religious Freedom Restoration Act, rather than the Supreme Court's recent decision?  The point you seem to wish to make is that the government, contrary to what that law says, *should* be permitted to "substantially burden a person's exercise of religion" as long as "the burden results from a rule of general applicability."  I recognize that you would not concede that Hobby Lobby's religious exercise was substantially burdened, any more than I would, but wouldn't you agree that it shouldn't matter anyway, that Congress should not have created (almost unanimously!) a religious exemption from laws that apply generally?

    For me it comes down to who, or what, is a person. The owners of Hobby Lobby claim they don't want to pay for contraceptives essentially claiming they are the corporation. Yet if so many people decided to boycott Hobby Lobby over this decision and the company went bankrupt the owners would claim they are not responsible for the debts because they are not the corporation.  They want it both ways and both of those contradictory ways help them and hurt  many more other people. Corporations are not people and don't have religions.

    May I direct your attention to The Federalist Essay's 9 and 10 by Hamilton and Madison.

    In Essay 9, Hamilton addresses the destructive role of a faction in breaking apart the republic. 

    In Essay 10,  Madison answers how to eliminate the negative effects of faction.  He addresses the question of how to guard against "factions", or groups of citizens, with interests contrary to the rights of others or the interests of the whole community.

    What I find interesting is how they answer what we're seeing today ... yet their wisdom is being ignore.

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