Legal precedents like Hobby Lobby are not, contrary to popular opinion, using religion as a sword against others. Nor are they a loophole that people are using just so they can stick it to The Man for no reason. People sincerely believe these things, and whether you agree or disagree with the foundation of that belief, “consent of the governed” should at least mean SOMETHING. First Things:
After the U.S. Supreme Court issued its Hobby Lobby decision in late-June, the Boston Globe printed an editorial under a regretful header: “Supreme Court loses its way in vague contraceptive decision.”
“Loses its way”? It’s a telling locution. There is a right way for the Court, you see, and in their solemn perceptiveness the editors know what it is. The jurists in the majority didn’t infer and cogitate their way to an opinion. They strayed from the way, presumably, the path of justice.
There is nothing unusual about that condescension, of course. You hear it all the time in liberal outlets like the Globe. In fact, the editorial has another example, a reduction which defenders of religious liberty face America constantly. It isn’t a wild, loud expression. No, it pops up so briefly and casually that average readers curious about the news of the day probably didn’t notice:
the ruling holds the potential to create great mischief by keeping alive the flawed legal notion that companies can pick and choose which laws to follow so long as they cite a religious justification.
The wording pictures a cynical scene, as if a human resources vice-president surveyed existing laws and regulations, slapped his forehead, and told the board, “Hey, we can get out of this one—all we need are some religious beliefs that they violate.” This isn’t a description of religious believers; it’s a caricature.
This deflation of principled devotion into a strategic tool for advantage isn’t a mistake. Marx mastered the technique long ago, asserting that the reigning ideas are merely means for the powerful to maintain their power. In today’s liberal conversations it has become a convention. The ACLU web site, for instance, has a page devoted to “Using Religion to Discriminate.” Whether it’s “business owners refusing to provide insurance coverage for contraception” or “pharmacies turning away women seeking to fill birth control prescriptions,” the ACLU sees a single tactic at play: “While the situations may differ, one thing remains the same: religion is being used as an excuse to discriminate against and harm others.” The idea seems to be that certain people want to inflict pain, and they find religion a handy justification for doing so.
False and bilious, the charge is also effective. The full power of the rhetorical trick lies in its personal thrust. When people employ it, they don’t argue questions of faith and doctrine or law. Instead, they change the subject. “What does this faith say?” gives way to “How is it used?” Believers are disarmed. In turning fidelity into a mode of cunning, they force the faithful to reply, “I’m not trying to do anything else—I really believe this, and I can’t disobey my church.”
But the accusers have a follow-up. “Really?” they repeat. “Or is it just a way to hurt people you don’t like?” We have abandoned the critical point about whether the law infringes on religious liberty and replaced it with another issue, the sincerity of the believer. The law isn’t on trial anymore—the believer is, placed in the humiliating position of having to prove that he means what he says, that his motives are spiritual, not malicious. It’s an exasperating position. How do you prove your sincerity to a cynic?
I heard an example of this phenomenon on an NPR show that week while driving through Massachusetts. Four people discussed the Hobby Lobby decision, one of them a vigorous defender of the company, one a surly critic. As the conversation flowed, the critic heard enough of the Hobby Lobby family’s religion and blurted that he didn’t accept their “deeply-held” faith at all. If they were so religious, he charged, then why do they buy goods from companies located in countries that suppress human rights and religious freedom? Up until then, the defender had spoken persuasively for the company, but here he faltered. It may be, he responded, that trade tends to open closed societies, and besides, he knows the family and their sincerity is unquestionable. Not a bad answer, but it didn’t dispel the allegation. We ended with a he-said/he-said exchange.
That sounds like a stalemate, but in truth it is a triumph for the skeptic. Typically, when we enter in an arena of competing and unresolvable claims, the small-l liberal solution is to allow each his belief but prevent him from imposing it on others. Sincerity is one of those fugitive conditions that you can go back and forth trying to establish forever. Once we weigh a claim by the depth of a person’s faith, the truth of the matter shrinks into a personal affair, my beliefs and your beliefs, all evaluated not as true or false, right or wrong, but whether genuinely, earnestly, sincerely espoused. The turn levels strongly held beliefs, religious ones and non-religious ones, so long as they are honestly believed and share space with others.
. . .
That legal disagreement shall surely evolve as curbs on religious liberty press forward. The argument here applies more to forensics in the public square, the kinds of verbal jockeying you find in the op-ed pages and on the news shows. Specifically, we see the conversion of faith from conviction to tactic, which sets sincerity ahead of the True and the Good. Their integrity questioned, believers naturally jump to profess the authenticity of their faith. In doing so, even when they succeed, they lose. The goal of the skeptic to discredit the believer is only an intermediary one. The final goal is to situate religious principles among a plurality of commitments, practices, and feelings. In that swirling, putatively democratic marketplace, religious principles have no greater authority than any others.