In 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. The court has not simply granted Hobby Lobby the status of a person; the court has allowed corporations to define themselves as holy persons whose moral purity is endangered by sexual pollution. In this way, the court has developed a doctrine of monetary sanctification.
To explain monetary sanctification, I take it for granted that justices of various political persuasions invent the religious practices they claim to protect. Therefore, I am less likely than Sullivan to see Justice Ruth Bader Ginsberg’s narrow view of religion as symptomatic of liberal incoherency. As Sullivan states, “The exercise of religion, as Justice Ginsburg suggested in her dissent in Hobby Lobby, might more usually be understood to be centered on activities such as ‘prayer, worship, and the taking of sacraments’ by individuals.” Sullivan finds this inadequate in light of the diverse ways in which people practice religion; Ginsberg’s narrow focus is at odds with conventional usages of religion as well as the subjects that scholars of religion have chosen to study.
While I agree with most of Sullivan’s analysis, I have one quibble with her critique of Ginsberg. I am not persuaded that Ginsberg’s definition of religion is wrong because I am not convinced there is any such thing as a wrong definition of religion. If it serves your purposes to restrict religion to prayer and sacraments, then that’s what religion is. If it serves your purposes to widen religion to include things like moral convictions about contraception, then religion is that. To say that religion is too complex for legal definitions presumes that religion exists in the world prior to its labeling and classification. While such arbitrariness might make lawyers uneasy, accepting that justices fashion religion to serve their own purposes is the best way of predicting what courts will actually decide. What liberals can do is to stop pretending that religious freedom is a high-minded legal principle and acknowledge that free exercise claims are ordinary matters of political and institutional power.
On the point about institutional power, Sullivan and I are on the same page. I take a more charitable view, however, of liberal challenges to the court’s definition of religious organizations. Sullivan writes: “Justice Ginsburg announces that, ‘Religious organizations exist to foster the interests of persons subscribing to the same religious faith.’ It is not clear to whom she refers here. As with the other justices in this case and others, her Delphic pronouncements about religion seem to come from the ether. How does she know this? Few who study religion would agree with this statement.” Well, I study religion and I’m cool with it. Ginsberg’s description is just as plausible as any other definition of a religious organization. If definitions of religion are rhetorical fictions, then Ginsberg’s narrow view could be a strategic attempt to combat the majority opinion’s definition of personhood. The reason why highlighting people of the “same religious faith” might be useful is that it addresses the claim Hobby Lobby is making about itself. Hobby Lobby argues that it is a singular person expressing the will of the Green family. For Ginsberg, singular corporate personhood ignores the liberty of third parties in the persons of employees. In pointing this out, she is working within the rhetorical fictions used to decide this case, and calls attention to the arbitrariness of who Justice Samuel Alito chooses to call a person.
That being said, I am less interested in Ginsberg’s attempts to expose Alito’s incoherency than I am in how he imagines religious freedom. One common response to Ginsberg’s concerns is that Hobby Lobby employees are free to do whatever they want. As free citizens in a free market, women can buy contraception for themselves. Furthermore, Alito assures us there is no economic burden because the Department of Health and Human Services has hammered out an agreement with the Catholic Church in which a separate fund will pay for contraceptive coverage. As the court argues, “The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.”
This assurance, however, raises questions about the decision’s purpose. If the effect is “precisely zero,” then why bother? Some Catholics have objected to the separate fund on the grounds that it makes no difference. As Ginsberg notes, it is unclear what will happen if Hobby Lobby decides this accommodation also violates its conscience. Alito’s assertion that the separate fund will make Hobby Lobby happy is curious considering his assertion that contraception is a matter of great weight. As he explains, “The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.”
But what “important question of religion and moral philosophy” is resolved by saying “you can do whatever you want as long as I don’t have to pay for it”? Such a resolution would be satisfying only if one had no strong moral convictions. Presumably, Hobby Lobby would prefer to legally enjoin some contraception methods or to persuade its employees not to use them. This decision accomplishes neither of these aims. So what does the separate fund accomplish?
Sincerity and Other Expressions
Some hints about the purpose of the zero effect doctrine can be found Justice Anthony Kennedy’s concurrence, in which he insists, “Free exercise. . .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.” The right to political expression would seem to make the zero effect solution an untenable one. The solution works, however, if one distinguishes between expression and persuasion. Hobby Lobby does not expect to persuade its employees or to affect the “political, civic, and economic life of our larger community.” It seeks instead to protect itself from the community by expressing “sincere beliefs” that are immune to persuasion. Sincere beliefs are a special category of propositions located in an inscrutable interior domain. In equating sincerity with conscience, the court reproduces secular assumptions about the category of religion—that is, to define beliefs as religious is to define them as private intuitions kept rigorously separate from public reason. This separation has perplexing implications for public discourse. On one hand, sincere beliefs need to express themselves through the expenditure of money. On the other hand, these beliefs have a logic that is accessible only to the people who hold them. This would meet no criteria for a serious moral debate, and that is exactly the point. The Hobby Lobby decision seeks to dramatize that public debates about moral questions are impossible. There can be no such thing as public health policy because these issues involve private matters that should be left to churches, families, and corporations.
Failing to persuade its employees of the immorality of their sexual practices, Hobby Lobby attempts to inflict punitive financial harm. Failing to inflict harm, the corporation barricades itself against threats to its property. In other words, sincerity helps to establish the capitalist fantasy of property, free from accountability to others or regulation by the state. Understanding that conscience is a marker for the ability to use property as one pleases explains why the zero effect doctrine is satisfying. The separate fund keeps Hobby Lobby’s money free from pollution by immoral practices. Creative accounting performs the work of corporate sanctification.
Our Property, Ourselves
In the court’s view of religious self-definition, property is what makes you a person. If your property is free then you are free. Scrubbed clean of concerns about institutional power and inequality, the alchemy of religious freedom converts corporations and their employees into equal persons free to express themselves. A woman’s personhood, however, is curiously fragmented. She is a person on her own time, but while employed she is part of another person who has an interest in moral surveillance over her person as her body is a piece of its own person. The price of an employee’s participation in economic life is to forfeit control over her person, but to be free as her leisure self. In the court’s logic, however, corporations cannot be fragmented. The court does not ask that the Greens exercise religious liberty on their own time and forfeit some control over their corporation when participating in the marketplace. Hobby Lobby must be able to protect the sanctity of all aspects of its person. If employees violate Hobby Lobby’s morality, they do so only when their sexual behavior is symbolically removed from their economic persons through the separate fund.
It is no accident that contraception provides a symbolic test for the court’s model of personhood. Reproductive sex is fraught with opportunities for pollution because sex gets mixed up with the messy world of intercourse between persons. Sex poses problems for a moral universe based on the principle that people should be free to do whatever they want with their property. In Burwell v. Hobby Lobby, this came to a head when the personhood of what a corporation sincerely believed to be embryos was granted equal standing to the personhood of employees. For Hobby Lobby’s morality to hold together, women’s bodies must be clearly marked as the objects of property rather than persons entitled to reciprocal consideration. By invoking its sacred right to private property, Hobby Lobby can absolve itself from engaging other persons in public debate.
If sincere beliefs are as arbitrarily powerful as the Hobby Lobby decision makes them to be, then, it makes sense for liberals like Ginsberg to restrict religion’s scope so that fewer matters of serious moral debate are removed from civic life. There is no reason to make liberals disproportionately responsible for taking principled stands on religious freedom.