This 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.
And yet, not every aspect of the court opinions was polarized. Though they often disagree about legal issues, the liberal Justice Ruth Bader Ginsburg and conservative Justice Antonin Scalia are good friends. (There’s even an opera about them.) Hobby Lobby showed us another surprising agreement, one that Scalia, Ginsburg, and the other Justices all share: what religion is. Despite their differences, all of the justices seem to concur about two things: first, that religion has an identifiable core and essence, and second, that the core and essence of religion is belief. If and only if we see “sincere religious belief,” they suggest, then we see religion.
Justice Kennedy’s concurrence is worth citing at some length:
In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief . . . It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.
For Kennedy, freedom begins with freedom to believe. More than that, it means the freedom to believe “in a divine creator and a divine law.” If you choose the “course” of belief, then free exercise follows. Free exercise, for Kennedy, is crucial because it allows the believing person to live a life of consistency and dignity shaped by her beliefs. The free exercise of religion here is the “freedom of belief” plus the “right to express [one’s] beliefs.” Throughout Justice Kennedy’s concurrence, the “believing” aspect of religion is primary and foundational. The practice is secondary and depends on belief. Belief is a prerequisite for religious exercise.
Religion, in this view, is not a practice, but rather beliefs that one puts into practice. Writing for the court, Justice Alito offered a fundamentally similar picture of religion. He explained: “Because the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.” But this is not true. No amount of payment burdens beliefs. We might say that burdens the people, or places a burden on their religious practice. But it neither challenges nor burdens belief. And surely Alito doesn’t mean this. He means that it burdens religious people. If, in Citizens United, corporations have become people, in Hobby Lobby, it seems that “beliefs” have become religion.
Justice Ginsburg, in her dissent, showed how “religion” and “belief” functioned synonymously for her: “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the court’s attention.” Religion and belief seem interchangeable here, and this sentence highlights the problem with conflating the two. Any thoughtful observer of American religion—or anyone who has ever belonged to a religious community, for that matter—knows that every religious community “made up of believers in the same religion” is still a community of people with “diverse beliefs.” While her point about the recognition of employers’ potential religious difference from their employees stands, Justice Ginsburg’s conception of religion still assumes the primacy of belief.
These assumptions about the primacy of “sincere religious beliefs” are not simply a function of the case’s relationship to the Religious Freedom Restoration Act (RFRA). RFRA offers “sincere religious belief” as one of the necessary criteria for allowing religious exemptions, and so it is perhaps predictable that the court would focus on belief and its sincerity. Neither side ever questioned the sincerity of the plaintiffs’ religious beliefs. The court’s other big 2014 religion ruling, Town of Greece v. Galloway, is less explicit because it considered the Establishment clause, rather than the RFRA. And even in Greece, the court’s language suggests that “religion” means “faith” and “belief.” The justices use “faith” almost three times as often as “religion,” even though no one’s belief or faith was at issue in the case. The case ruled on whether or not the town of Greece could begin its town council meetings with the prayers of invited clergy or other religious representatives. Both the court’s decision and the dissent talk about “minority faiths,” a “faith or creed,” “faith traditions,” and a “person of another faith” when they mean religion and religious affiliation. What does this language tell us? By itself, little. It could be an accident of vocabulary. But in combination with other recent rulings about religion, we can see that even if the vocabulary is unconscious on the court’s part, it illuminates their assumptions about what religion is.
Throughout the summer—and throughout the court’s longer history—religion has become fundamentally a matter of belief and faith. What a person does with her body because of belief and faith is protected, but the real essence of religion is what’s going on in her head and her heart. Religious expression is an outgrowth, a second-order occurrence stemming from religious belief. The mind and the heart are primary; the body is secondary. The court, of course, did not invent this picture of religion. It is bequeathed to the court and American culture more broadly by a particularly Protestant legacy, in which the heart and the mind are the primary location of a relationship with God, and outward acts serve as a sign of the internal religious state of affairs. From Roger Williams’ “liberty of conscience” to Martha Nussbaum’s Liberty of Conscience, this idea of belief-based religion is ingrained in American thought about religion and law—so much so that the court assumes this picture of religion, despite its current makeup of six Catholics and three Jews.
What are the implications of this conception of religion? We might simply note that the court has a Protestant-influenced conception of what religion is, and move along. But this is not merely a philosophical preference for one idea over another. The effect of this conception is to render some kinds of religion more visible than others. This legal picture of religion offers no guidance about what to make of religious arrangements where practice is primary, and belief is secondary. For instance, Saba Mahmood and Talal Asad have offered anthropological accounts of religion wherein Muslims and Christians carry out bodily religious rituals not because they already have some internal state of unwavering belief or faith, but in order to believe or cultivate faith. These religious lives and expressions are nearly unintelligible as religion, or seem backward, if we begin with an account that takes sincere religious belief to be the foundation and starting point of religion.
To take a contemporary American example, Ayala Fader has written about the Jewish blogosphere, an online community with many nonliberal “ultra-Orthodox” Jews who “questioned or ceased to believe in Jewish tenets of faith, yet remained in their communities to practice nonliberal Judaism, at least in public.” These men and women are still participants in their religious communities. The married women still cover their hair, the men don tefillin and pray, they don’t turn electricity on or off on the Sabbath, and they keep kosher. Religious law still structures their home lives, public lives, and even sex lives. But are their religious practices the result of “sincere religious belief”? No. They do practice a recognizable form of Judaism, one that looks very similar to others in their community. But their religious practices are based on something else—the importance of belonging in their community, their attachment to family, a committed sense of what seems right regardless of what seems true, and dozens of other personal reasons. How would the court see one of these nonliberal Jewish men who ceased to believe in God, but still practices? Are his practices no longer protected in the same way as those of his fellow community members?
These cases aren’t restricted to a small class of doubters and dissenters. We can think of hundreds of other scenarios where religious practice is not motivated by “sincere religious belief.” When would these count as protected religious exercise? What if it’s not my sincere religious belief that this bread becomes Jesus’ body, but I want to take communion anyway because I value the ritual aspect, or because my grandmother believes, and that matters deeply to me? What if I’m six years old, and I don’t really know what I believe? What if I take off work because it is Yom Kippur, and I fast all day, but I don’t believe in God? What if I’m not sure? What if my beliefs waver?
The court’s assumption that the essence of religion lives in the heart and mind is particularly striking in Hobby Lobby because of what is at stake: the regulation of bodies. Are the justices a bunch of unreconstructed Cartesians? Of course not. Nor are they alone in their belief-based religious anthropology. As Elizabeth Shakman Hurd has suggested, the belief model of religion has become the mainstay of American- and European-based international campaigns for religious freedom.
When the justices rely on this belief model of religion, they operate with a religious anthropology that grounds itself in the individual. Sincere belief is both radically individual and relative: the court affirms that it “need not be acceptable, logical, consistent, or comprehensible to others.” The religious person, in this view, is first and foremost an individual, not a community member or a product of social forces. Moreover, this anthropology takes the interior state of the individual—her heart and mind—as the center of her person. The court sees itself as protecting the innermost and essential part of the human when it protects individual beliefs and faith. Ironically, this sacrosanct center of the human is difficult for anyone other than the person herself to access, but the law insists that her beliefs must be sincere in order to be protected. How can courts decide whether beliefs are sincere? Since they cannot look into hearts and minds, they can only look at a person’s words and actions. Individual beliefs and faith—the very thing the court holds up as the essence of the religious human—are at best indirectly accessible to the process of legal scrutiny.
Even if we leave aside concerns about courts determining what is and what is not sincere, the court has already determined what will be legible as religion. While for many people “sincere religious belief” is an important part of religion, it is not the same as religion, nor is it always the foundation. Though the court and much of the American public think that, for better or for worse, Hobby Lobby represented an expansion of religious freedom, it also shows us the court’s narrow view of religion.
I am indebted to Winni Sullivan, Ben Berger, Eva Mroczek, and Kevin Houser for their insight and comments.