Posts Tagged ‘Burwell v. Hobby Lobby’

March 23rd, 2015

Religious freedom at Religion Dispatches

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As part of a joint project between The Immanent Frame and Religion Dispatches, RD contributing editor Austin Dacey has written a series of posts on religious freedom in the United States. His latest piece tackles Winnifred Fallers Sullivan’s “The impossibility of religious freedom” and potential alternate regimes for legislating religious freedom in the United States.

January 22nd, 2015

Corporate veil or wall of separation?

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We stand unitedThe U.S. Supreme Court’s decision in Burwell v. Hobby Lobby raises a series of important questions for public debate. If for-profit corporations are entitled to exercise freedom of religion, then as a civil society we must consider certain questions that follow from this extension of the prerogatives traditionally granted to churches and other religious organizations, as well as to individuals acting in their private capacities. My analysis will focus on these larger questions of policy and attempt to provide some further context for the debate that should now occur.

Winnifred Fallers Sullivan, whose insights are always penetrating on these issues and worth pondering carefully, has missed the mark in her earlier reaction to the decision. She uses Hobby Lobby as an example of the reductio ad absurdum of the logic of freedom of religion, and argues that we (especially liberal exponents of toleration) are unable to reasonably deny freedom of religion in cases where the substantive rights guaranteed seem intolerable to many. I respectfully disagree.

January 20th, 2015

Corporation as sect

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We stand unitedIt is easy to forget that religious freedom wasn’t an only child: she was a part of a family of counter-measures listed in the First Amendment. The naming of religion in the Constitution was, and is, a defensive move: whatever government does, it should not get in the way of its citizens trying to articulate their opinions—opinions articulated through speech, through the press, through assemblage, and through petition. Religion appears in the Establishment Clause as a reminder that religion has been one of the things that has kept people from being able to reply freely to their governments. Free from influences within government, and free from religions that compete with government in their authority.

January 14th, 2015

The privilege of spirit: The liberal concern with religious liberty claims

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Defend Religious Liberty | Image via Ronit Y. StahlA few blocks from my apartment, a neighbor has displayed a placard proclaiming “Defend Religious Liberty.” These words could encompass a range of meanings and raise any number of questions. What, exactly, does religious liberty entail? Who claims it? Who attacks it? But no one is left wondering for long, as the graphics define the intent of the sign more explicitly. Behind the capitalized words, an eagle shares space with an American flag and a cross. Defending religious liberty in the United States, the illustration bellows, is patriotic. And it means protecting Christianity.

This sign, I think, signifies the key issue for liberals in the wake of the Supreme Court’s 2014 term major religion decisions—Burwell v. Hobby Lobby, Wheaton College v. Burwell, and Town of Greece v. Galloway. The core concern is not with the mixing of religion and profit, or sexual matters. Instead, it is a gnawing sense of unease about the solicitude granted to the type of religion that has long been powerful, but is presented by its adherents as marginalized; in short, the problem lies in the twin-set of power and privilege.

January 8th, 2015

On the unreasonableness of legal religion

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We stand unitedToward the end of her Burwell v. Hobby Lobby dissent, Justice Ruth Bader Ginsberg finally gets to the heart of the problem. Describing a slew of contentious claims that might follow the Court’s decision, she asks, “Would RFRA [Religious Freedom Restoration Act] require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not?” Yes, a chorus of religion scholars might respond, how indeed? How can the Court possibly countenance all the claims advanced under the mantle of religious freedom without drawing some highly questionable distinctions? How can it possibly demarcate the limits of religious freedom without deeming some beliefs more worthwhile than others? Lines will have to be drawn.

December 29th, 2014

The zero effect doctrine

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We stand unitedIn the wake of last summer’s Burwell v. Hobby Lobby and Wheaton College v. Burwell decisions, many wondered how corporations could exercise religious liberty. Liberal discussions focused on the apparent absurdity of extending constitutional rights to ethereal legal fictions rather than flesh-and-blood human beings. While those who decried the decisions often focused on the Supreme Court’s tenuous definition of personhood, Winnifred Fallers Sullivan’s essay shifted critical attention to shaky assumptions about religion. According to Sullivan, liberal critics have overlooked tensions within their own models of religious freedom. These tensions reveal “the ramshackle structure of current religious freedom jurisprudence in the U.S.”

In this post, I want to revisit Sullivan’s focus on the category of religion. Rather than expand on her critique of the “rotten core” of religious freedom, however, I would like to use the Hobby Lobby decision to consider what kind of religious exercise the court protects. In my view, the court has invented a novel form of religious practice in which people protect their property from the polluting contact of other people.

December 18th, 2014

Hobby Lobby and the question for religious freedom

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We stand unitedWinnifred Fallers Sullivan is arguably the premier scholar of law and religion in the United States. She brings to the field of law an unparalleled degree of sophistication and historical and anthropological knowledge. When she says that all religious freedom laws are rotten at the core, that claim has to be taken seriously. The core of the problem, she writes, is the distorting effect of the demand that the state distinguish the religious from the nonreligious. The religious life of most Americans, “incredibly varied, creative, and entrepreneurial,” has become so disconnected from the law’s understanding of religion that the law should abandon the use of the category, “religion.”

As Sullivan notes, the Religious Freedom Restoration Act (RFRA)—the basis of the Burwell v. Hobby Lobby suit—was a reaction to the “notorious” Employment Division v. Smith decision, which limited the scope of the free exercise clause of the First Amendment. There are reasons for the notoriety and Smith was widely condemned. RFRA passed by overwhelming margins because most Americans thought that the tradition of specifically religious accommodation was valuable. Since Colonial times, Quakers have been exempted from oath-taking and military service. Catholics were permitted to use sacramental wine during Prohibition.

Our choices are clear: either we sometimes accommodate, or we never accommodate.

December 16th, 2014

The Supreme Court’s faith in belief

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We stand unitedThis summer, the Supreme Court was once again at the center of the American culture wars. The media and many Americans on both sides of the political spectrum saw the Burwell v Hobby Lobby decision as a case of religious freedom versus women’s rights. The headlines blared: “How the Catholic Church Masterminded the Supreme Court’s Hobby Lobby Debacle,” “Can Corporations Go to Hell?”, “Hobby Lobby: Does God Hate Obamacare?” and “Hobby Lobby case: Religious freedom’s worth more than $35.”

The court, which ruled 5-4 in favor of Hobby Lobby, was no less divided than the press. The two outspoken former prosecutors on the bench, Justices Samuel Alito and Sonia Sotomayor, pulled no punches in their rival opinions.

August 23rd, 2014

White House announces new women’s healthcare rules

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In the wake of this summer’s Hobby Lobby decision and Wheaton College order, the White House has announced a new regulation designed to reconcile recent accommodations for nonprofits and closely-held for-profits with the requirements of the Affordable Care Act.

July 8th, 2014

The impossibility of religious freedom

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In the last week the US Supreme Court has acted in two religious freedom cases (Burwell v. Hobby Lobby and Wheaton College v. Burwell) in favor of conservative Christian plaintiffs seeking exemptions from the contraceptive coverage mandate of the Affordable Care Act. Liberals have gone nuts, wildly predicting the end of the world as we know it. While I share their distress about the effects of these decisions on women, I want to talk about religion. I believe that it is time for some serious self-reflection on the part of liberals. To the extent that these decisions are about religion (and there are certainly other reasons to criticize the reasoning in these opinions), they reveal the rotten core at the heart of all religious freedom laws. The positions of both liberals and conservatives are affected by this rottenness but I speak here to liberals.