Hobby Lobby v. Sebelius raises thought-provoking questions about the meaning of religious liberty. Hobby Lobby is a closely-held family corporation owned by Evangelicals who believe life begins at conception. The HHS regulations for the Affordable Care Act require them as part of an employee health plan to provide three types of contraception that may induce abortion. The company already provides coverage for other required contraceptives but believes forcing it to offer those additional services violates the owners’ religious liberty.
Do such corporations have a right to religious freedom? Should the government be required to show that providing those three methods of contraception is a compelling government interest and that the provisions being challenged are the least restrictive of religious freedom available?
The case should cause us to think about what religious freedom means in our society and how we deal with it when it clashes with other putative rights.
Few Americans have a problem with individual liberties. Most people think we should be able to say what we want and believe what we want. Yet “belief” or “conscience” are not mentioned in the Bill of Rights. Religion is. What difference might that make?
Religion certainly implies personal belief, and world religions have for centuries examined deeply the role of individual conscience in morality. But religion also has a social dimension. What starts as personal experience doesn’t end there. People share their experiences. They come together to talk about them. They remember other people’s experiences from the past. And they act together based on those common beliefs.
Religious belief compels action. I might think the Nationals will win the pennant this year, but I feel no compulsion to buy season tickets. If, however, I believe that God said, Thou shalt not lie, I am compelled both not to lie and to value truth. If society respects religious liberty, it allows religious persons to act according to their beliefs, corporately and individually, in private and in public.
Why privilege religion? If the owners of Hobby Lobby can get special treatment because of their religious beliefs, why can’t anyone with sincerely-held beliefs, religious or not?
The historic answer is because religion plays a unique role in society, and the state is merely recognizing the rights of religious institutions to exist and of persons to practice religion. It’s not granting those rights. It’s not like giving someone a driver’s license because the government judges she can drive well enough. In our system we hold that the state is not competent to decide what type of religion is acceptable. Its origin is independent of the state. The state acknowledges it may not interfere with religion, just as religious organizations acknowledge the state’s legitimacy to govern. Within that framework, the government may set some limits in service of its duty to uphold the common good.
History is full of examples of religions trying to control the state, and, much more commonly in the last three centuries, of the state insisting on controlling religion. Both have their roles and their respective spheres of influence. That this issue of what spaces they occupy is again being debated is not troubling, but rather a mark of robust civil society.
John Farina is an Associate Professor of Religious Studies at George Mason University.