See Infra

Digging at the confluence of culture and everything else

A Preliminary Expectoration on Hobby Lobby

I’ve been without power for most of today, so I only have time for one quick thought on Burwell v. Hobby Lobby Stores, Inc.. I hope to have a more extensive write up, probably in a two three post series. For now, I want to start by introducing some concepts that may not be completely familiar to a general audience. Please note, despite the title, I do not think myself the equal of Soren Kierkegaard.

Hobby Lobby is not a First Amendment case. That means it is not about the Free Exercise of religion, even if it is about exercising religion, and it isn’t about the Establishment of Religion, even if there are religious actors are involved. It is actually a Religious Freedom Restoration Act (RFRA, sometimes pronounced “rif-ra”) case, so it is in large part about determining what Congress meant when it created and amended the act and less about the underlying judicial policy questions of religion and person-hood, although those are obviously a factor. Understanding the case in that way helps clarify the issues worth caring about as a lawyer and a lay citizen.

I like to think of policy questions as constantly asking about “who do we want doing what to who at what cost?” It is always worth asking, not only is the thing we are asking the right thing to want, but are the right people the ones doing those actions, and that the costs are acceptable. That’s already a lot to ask, and you have to keep asking at every step of the way. This also means that simple answers are usually the wrong ones ones. In fact, you’re usually going to come up with several answers that are in tension with each other. So we’re going to want to balance the needs and the costs. And then we’re going to have to figure out who does the balancing for us.

So before we deal with Hobby Lobby itself, let’s think about RFRA more broadly. Who? Religious believers. Doing what? Rejecting substantial burdens To who? Governments and their agents. At what cost? Governments have to have compelling interests and use the least restrictive means. Let’s iterate the questions once because this is important. Who decides what a compelling interest is? Who decides what qualifies as the least restrictive means? Who decides who counts as a religious believer? Who decides what a substantial burden is? How do we determine the balance?

Religious liberty is not easy, because it involves two big asks. We need to have our ability to pursue our religion (or irrelegion) protected from coercive powers, governmental or private. At the same time, we need to be able to pursue our lives and construct our society without having to bear the costs of someone else’s religion. The bottom line here is that I think the big question – is RFRA a good idea? – is hard and the smaller question – should Hobby Lobby have won? – is also hard. Anyone who tells you otherwise is probably not asking enough questions.


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