Toward 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.
For many scholars, the Hobby Lobby case offers yet another example of the futility and fraught nature of the category of religion, for there seems no obvious way out of Ginsberg’s bind. As Winnifred Fallers Sullivan has repeatedly argued, to protect religion is to define it, and legal definitions have regularly functioned to sort out good religion from bad, acceptable modes of piety from unacceptable, even loud from quiet. Whether judges analyze claims in terms of plausibility, substantiality, or sincerity—standards applied in different ways throughout the Hobby Lobby decision—they end up engaged in precisely the kinds of theological and normative inquiries that they claim so strenuously to want to avoid.
Sullivan concludes from this that “religion” has outlived its usefulness as a legal category. Because there can be no fair way of demarcating its boundaries, she proposes that its value has been exhausted. But that does not seem quite right. Though I appreciate the analytical force of her argument, I would agree with Russell McCutcheon that her account instead reveals how religion is now “more useful than ever.” The political forces mobilized around religious freedom since Employment Division v. Smith (the peyote case) have found religion to be an eminently malleable category that can be deployed to advance any number of competing ends, and the practical logic governing these practices has spilled well beyond the arena of constitutional jurisprudence. At a time when even National Football League referees are expected to distinguish between heartfelt performances of religious piety and excessive displays of secular exuberance, it hardly seems likely that religion could be on its way out. It remains far too useful, whether theoretically consistent or not.
One task for religion scholars, then, is to analyze whose interests are served in the varied ways religion gets deployed. Here we find something interesting, especially when we consider the one point on which Hobby Lobby majority and dissent appear to agree. Behind all the partisan bickering, we find a common valorization that has actually been percolating in the Court’s decisions for quite some time: the idea that real religion can be “known” not by virtue of its form, content, or substance, but by the rigidity of its claims.
Consider, for example, how for all their differences, neither Justices Samuel Alito nor Ginsberg ever challenges the sincerity of the Green family’s beliefs. Ginsberg questions the substantiality of the burden imposed on them but professes respect for their genuineness. Alito likewise maintains that the Court must take the family’s claims seriously, no matter—or perhaps precisely on account of—how unreasonable they might seem. Put differently, it is as if he thinks their manifest unreasonableness offers the strongest evidence for the depth of their conviction.
Contrast that with how the Court treats other groups who enter its decision in more and less oblique ways. For example, in section III.B.4, Alito refutes the contention that courts will not be able to assess a for-profit corporation’s sincerity by pointing to the much “harder” case of inmates. Noting the wide scope of protections afforded by RFRA’s successor, the Religious Land Use and Institutionalized Persons Act, Alito writes, “If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Congress limited RFRA’s reach out of concern for the seemingly less difficult task of doing the same in corporate cases.” Perfectly reflecting our neoliberal moment, Alito takes as self-evident that corporations should enjoy a greater presumption of credibility than the millions of individuals currently incarcerated in American penitentiaries. As Joshua Dubler has described, prisoners stand here, as they often have, as the archetypal men of bad faith, their past deeds admitted already as evidence against them, the imaginativeness of their claims inevitably interpreted as proof of their frivolousness.
Yet we have learned more recently that prisoners can also be held suspect for the very reasonableness of their claims. Consider the oral arguments in Holt v. Hobbs, testing a Muslim prisoner’s right to grow a half-inch beard. The justices claimed to find the case “too easy” to decide because Holt had refrained from growing a full beard, as allegedly dictated by his faith. While a full beard might pose genuine security concerns, the justices deemed a half-inch beard perfectly reasonable. And the very reasonableness of Holt’s request aroused Justice Antonin Scalia’s suspicion. “Religious beliefs aren’t reasonable,” Scalia explained. “Religious beliefs are categorical. You know, it’s ‘God tells you.’” Real religion, Scalia informs us, is absolutist, inflexible, resistant to compromise. It does not consent to a half-inch when only full-length will do. The half-inch beard offers a poor measure of religious freedom, therefore, for it signals only the shallowness of Holt’s convictions. For Scalia, a half-inch beard can only mean its bearer lacks commitment.
In a similar vein, consider Justice Ginsberg’s reference to Bowen v. Roy in her Hobby Lobby dissent. Bowen was a 1986 free exercise challenge to the government’s use of a Native American child’s Social Security number when administering benefit programs. The Court found no substantial burden had been imposed on the father’s belief that such use violated his daughter’s spirit, and Ginsberg approvingly cites this decision to distinguish the standard of substantiality from sincerity. (In passing, the irony should be noted of Ginsberg using a ruling against Native American claimants to try to limit the scope of RFRA, which many liberals initially supported in order to protect the rights of a different set of Native American claimants.) Though it is technically true that the Bowen Court accepted Roy’s sincerity, Chief Justice Warren Burger, writing for the majority, emphasized that Roy had only “recently” come to hold his beliefs, that he, his wife, and other daughter all had previously obtained social security numbers, and that Roy had changed the nature of his claim when presented with new information—on the last day of trial—that his younger daughter already had been assigned a social security number without his knowledge. In short, Burger did everything short of expressly challenging Roy’s sincerity, and it is hardly farfetched to imagine that these factors undermined the seriousness with which the Court regarded his claim. It seems that Roy, too, was ultimately found wanting in conviction.
All of this is to suggest that while the Hobby Lobby opinions can certainly be framed within a culture wars narrative pitting liberals against conservatives, and corporate interests versus women’s rights, the case also reveals a profound—and troubling—point of agreement across these divides. What the justices on both sides really seem to distrust is inconstancy, inconsistency, and wavering commitment. Or, put differently, when it comes to religion, the Court’s justices seem particularly suspicious of reasonableness, of flexibility, even of pragmatic compromise. (It could be added that this seems as true in politics as in religion. Note how both majority and dissent treat the exceptions carved out of the Affordable Care Act as undermining the depth of the government’s commitment rather than as laudable concessions to the practical realities of politics in a democracy.)
In other words, what the Court denigrates is precisely what many “lived religion” scholars find most interesting, namely the productive tension between norms and practices, the varied ways that individuals negotiate their religious lives from within disciplinary power structures, or, put more simply, the fact that inconsistency is not tantamount to hypocrisy. The Court deploys “religion” in a way that serves the interests of those who would define it in its most absolutist or rigid forms. It turns religious freedom into a tool for enforcing orthodoxy, allowing little space for difference and dissent, let alone inconsistency and inconstancy. This tendency is even reinforced by Justice Ginsberg’s contention that religious organizations exist to foster “the interests of persons subscribing to the same religious faith,” thereby collapsing internal heterogeneities into an idealized model of communal consent. As Elizabeth Shakman Hurd has suggested in a different context, there is often far “less space for diversity in a world of official religion.”
There is great irony here, of course, for it is precisely its alleged absolutism that also has made religion so suspect in the eyes of the government. Its unwillingness to compromise stands both as defining feature of the phenomenon to be preserved and as key aspect of the type of religion to be targeted by American projects of religious reform, that most in need of “moderation.” It is precisely religion’s immoderateness, in other words, that we have been taught both to admire and fear. In this way, defining religion in terms of the rigidity of its claims serves to render it as both object in need of protection and source of particular concern. What it arguably does not do is make religion more “free.”
In an influential 1983 essay, Robert Cover faulted the Court for its lack of “commitment,” for its failure to commit itself to a particular vision of the law and its normative values. But the problem in recent religion cases lies more in the degree of commitment that the Court expects from everyone else. The problem lies with a Court that equates sincerity with consistency, flexibility with infidelity, compromise with faithlessness. And therein lies the real impossibility of religious freedom, for who could possibly live up to its impossible standards?
Thank you to Joshua Dubler and Benjamin Schonthal for comments on earlier drafts of this essay.