THE VOICE OF REASON
Hawley

A LAW PROFESSOR’S TWISTED TAKE ON HOBBY LOBBY 

          In the July 14 issue of The Weekly Standard there appears an article, entitled “A Vindication of Religious Pluralism,” written by Joshua Hawley, a professor of law at the University of Missouri, who was of counsel to Hobby Lobby in its recent Supreme Court case, styled Burwell v. Hobby Lobby Stores, Inc. 

          The basic facts in the case were these: 

* The plaintiffs were Hobby Lobby, Mardel, and Conestoga Wood Specialties, all closely held corporations subject to the requirements of the Affordable Care Act (ACA). 

* Pursuant to the requirements of ACA, the Department of Health and Human Services (HHS) mandated that those such as the plaintiffs insure their employees and pay for "preventive services," including contraceptive drugs or devices that operate as abortifacients. 

* The plaintiffs offered to pay for sixteen means of contraception that were mandated by HHS, but refused to pay for four other means that operated to abort pregnancy. 

* If the plaintiffs complied with the mandate in its entirety, they would be facilitating abortion; but, if they did not comply, they would suffer multi-million dollar penalties, and their employees would lose their health insurance.

* The plaintiffs sued HHS on the ground that the mandate violated their religious freedom as spelled out by the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the “Government [from] substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling government interest and (2) is the least restrictive means of furthering that compelling government interest. 

* In a five to four decision, the United States Supreme Court found that the HHS mandate violated RFRA, because it was not the least restrictive means of serving the assumed compelling interest under ACA.

* The Court further stated that Congress, by ACA and RFRA, never intended to put a family-run business to the choice of either violating the family’s sincerely held religious beliefs or causing all of its employees to lose their existing healthcare plans.  The least restrictive alternative was for the government, not the employers, to assume the cost of providing the four contraceptives at issue. 

          The Hobby Lobby case, as it’s known, is definitely a vindication of religious freedom, but we must remember that a single vote could have reversed the outcome. For this reason, the decision is hardly a resounding vindication of religious freedom.  It would be more to the point to say that religious freedom hangs by a thread in America today and that this fact is as much a cause for concern as the victory is a cause for celebration. 

          Yet listen to Professor Hawley’s views of the matter.  He effervesces that the decision is not only “cause enough for celebration,” but believes “[i]t vindicates and preserves the Constitution’s mechanism for converting religious pluralism into social belonging.” Uh, what was that again? The professor explains “that believers of all faiths are free to pursue their religious convictions peaceably.” Most Americans would probably respond to this assertion by asking, “What’s new about that?” Well, pay close attention, because the professor means more by it than meets the eye. In America’s public square, he contends, all religious beliefs should be equally honored and respected. Quoting Justice Anthony Kennedy, the professor reminds us that “[a]mong the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.”  So what is the professor getting at?  What is he really saying? Wouldn't you know it; it's that, in this multicultural society in which we live, Hobby Lobby stands for the proposition that every religion is entitled to express its beliefs and to practice its faith in the public square. As if putting a cherry on top of a sundae, the professor notes that this marvelous liberal experiment (of allowing any and all religions to express themselves publicly) has “rarely led to serious social strife” within the United States. 

           First off, I encourage you to read the Hobby Lobby case from beginning to end and to see whether there is anything in the decision supporting “religious pluralism” as such. The decision is narrowly tailored around the refusal of certain closely held corporations to submit to paying for employee abortion when it would violate their religiously held beliefs to do so. The decision can scarcely be read as an ode to “religious pluralism.” 

          And be happy for that. Consider for a moment various “religious” practices, such as female genital mutilation, honor killing, human sacrifice, flogging, and stoning.  I ask Professor Hawley: are we to assume that, in the presence of an explicit federal prohibition to the contrary, one is entitled to practice these and other barbarities because “no person may be restricted or demeaned by government in exercising his or her religion”? For the sake of America’s conscience and cultural solidarity, I certainly hope not!  

          Or, let’s consider the matter from another angle.  Suppose that a Muslim parent sues a school district for having pork on its cafeteria menu, or building open shower stalls in girls’ physical education facilities, or teaching square dancing in a co-educational setting. Are these to be legally enjoined for the sake of religious freedom? Further suppose that a Sikh teacher desires to wear a sword and a turban into a public classroom in total disregard of the dress code, but is told he cannot do so; does he have a legitimate cause of action against the school on religious grounds? If and when a Buddhist is offended because his child is asked to recite the Pledge of Allegiance and, in so doing, to profess belief in a deity, should the Buddhist receive special dispensation from the state as “a vindication of religious pluralism”? Common sense would seem to dictate a single answer: "Not no, but hell no!" 

          Professor Hawley’s misguided statements demonstrate the appalling lack of understanding that prevails in this country regarding religion and its relationship to public culture. America has a distinct culture that is based upon Christian traditions, practices, mores, and modes of thought. Like it or not, this is an incontrovertible fact. We, for example, celebrate Christmas, marking the birth of Jesus, as a national holiday, but do not celebrate the birth of Mohammed, Buddha, or Confucius. Why is that? Because these other religious figures are not foundational to American public culture.  

          This is not to say that citizens are not free to worship as they wish. They may do so, but only within the bounds of the mores of American culture. Get it?

          “But isn’t what you're suggesting against the First Amendment?” you ask. No. The Religion Clauses prohibit an establishment of religion and also allow for free exercise.  They do not, however, prohibit America from having and holding to its own distinctive culture, which has been profoundly influenced by two thousand years of Christian thought and practice.  Those who come here as immigrants from other countries, and who do not appreciate America’s religio-culture, should not have a “heckler’s veto.”   If they cannot assimilate to the culture, or refuse to do so, they should leave. 

          The Christian religion has a cultural role in America that other religions do not have.  Professor Hawley is sadly mistaken if he views Christianity as “one faith beside others.” The idea that America’s public culture is, or should be, the equivalent of a giant bazaar of world religions does not accord with our history and is, in addition, far from practicable. Those Brits and Western Europeans who settled America established the culture once and for all. It is up to immigrants to assimilate to it.

          The professor’s contention that “religious difference in the United States has rarely led to serious social strife” is true, provided that one understands that, from the beginning of the seventeenth century through the mid-twentieth century, America was, as Will Herberg states, “Protestant, Catholic, [and] Jew.”  A remarkable religious and cultural homogeneity existed in this country for centuries. Nothing then existed like the radical religious pluralism we know today. All read from more or less the same Bible, and all worshipped the same God. The curse of Horace Kallen’s philosophy of cultural pluralism had not yet injected its venom into the body politic. But, beginning with the Immigration Reform Act of 1965, orchestrated by the likes of Emanuel Celler, Herbert Lehman, Jacob Javits, Abba Schwartz, and Norbert Schlei, immigrants from the Third World, both legal and illegal, began storming America’s “golden door,” providing new meaning to Emma Lazarus’s poem, “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore . . . .”  Thousands have come to this country and have failed to assimilate. They have often demonstrated their hatred of American culture.  Prominent examples are Chechen brothers Dzhokhar and Tamerlan Tsarnaev, two Muslims responsible for the infamous 2013 Boston Marathon bombings.  I don’t know about Professor Hawley, but I would say that what the brothers did in the name of religion passes for “social strife," wouldn't you? Contrary to the official spin on the Ft. Hood massacre, Dr. Nidal Hasan, another Muslim, was also a religious zealot, and what he did was light-years removed from simple “workplace violence.” 

           Professor Hawley and those like him interpret the First Amendment as if they are building sand castles in the sky. Someone should wake them from their academic slumbers, or perhaps give them a swift kick. They appear to have no more than a superficial understanding of American culture and little, if any, understanding of religion, yet they pontificate as if they were authorities on the subjects. They are lawyers, and nothing more, who also happen to be contributing to the rolling tide of ignorance in this country. 

          Culture and religion are serious as a heart attack.  It is time that Americans, even trade school teachers like Professor Hawley, understand this fact and act to safeguard American culture, assuming that it survives the ravages of the Obama administration. 

July 17, 2014