Tuesday, July 08, 2014

Hobby Lobby Post-Mortem Part 3: Overlapping Magisteria and the Truthiness Critique

by Michael Dorf

As promised yesterday, this is the third post in my series on Hobby Lobby. Today, I want to focus on what may strike many as a peculiar aspect of the Hobby Lobby case: the idea that religious claimants are entitled to rely on empirically false propositions to ground their legal claims to exceptions. I too found this peculiar at first, but after giving it some thought, I have concluded that it makes sense, as I shall now try to explain.

Both before and since the Hobby Lobby decision, I have sometimes seen (e.g., here) the following criticism of one aspect of the plaintiffs' claims: Some of the methods of contraception to which the plaintiffs object do indeed work by destroying a zygote or embryo and so they can be understood as a form of abortion to which they have a serious religious objection; but other methods (such as the IUD and the "morning after pill") that the plaintiffs claim work as abortifacients do not in fact work that way, and so the plaintiffs' religious objection to abortion should not count as even a prima facie objection to these other methods.

Before analyzing this line of argument--which I'll call the "truthiness critique" to denote the idea that people are entitled to their own opinions but not their own facts--I should explain that the move it criticizes probably didn't play a role in the Hobby Lobby decision itself, although one cannot be sure. Justice Alito says for the majority at one point: "The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients." That language suggests that whether the contraceptive methods are abortifacients is a matter of "religious belief." Assuming that there is an agreed-upon definition of abortifacient, Justice Alito appears to be saying that the crucial question is not whether the contraception methods really are abortifacients, but whether they plaintiffs believe that they are.

Nevertheless, the dissent does not challenge the majority using the truthiness critique and it's also possible to read Justice Alito more narrowly. He may just mean that there is a dispute over the meaning of "abortifacient." Is a contraceptive method an abortifacient if it destroys a zygote before implantation? A devout pro-life believer may say yes, even if scientists use the terms "abortion" and "abortifacient" only to refer to methods that operate after implantation.

In any event, I'm interested in the truthiness critique more generally, regardless of the role, if any, it played in Hobby Lobby. My bottom line is now this: I think that the truthiness critique is ultimately mistaken because it assumes that religion only makes spiritual and normative claims, not empirical claims. The fancy way to put this idea is, as the late evolutionary biologist Stephen Jay Gould put it, that science and religion are "non-overlapping magisteria", each with a legitimate claim to its own authority. Science tells us "how the heavens go," whereas religion tells us "how to go to heaven."

Gould was not naive, and so he recognized that many (perhaps most) religious people do not actually regard science and religion as non-overlapping. He offered the concept of non-overlapping magisteria as a means by which to supress the conflict between science and religion. But the very existence of such conflict showed that the magisteria do overlap in many people's minds.

Indeed, Gould's proposal could only even be offered in relatively modern times. In earlier periods, religion made all sorts of empirical claims: That God created the universe in six days, about six thousand years ago; that God made the Sun stand still in response to Joshua's prayer; that Jesus turned water into wine; that Mohammed ascended to Heaven to meet God, and then returned; that Krishna came to Earth in human form; etc. Each of these claims contradicts what science tells us is possible, and so many people who consider themselves somewhat religious but also accept science, tend to interpret such claims as mere metaphors. Yet millions of people still believe in the literal truth of the unscientific empirical claims of religion, and any minimally robust protection for freedom of religion protects them in their beliefs.

What does the law require when a religious objection to some legal proscription or requirement rests on a religious belief that is based on an empirical proposition that contradicts the best understanding of what science tells us? Notwithstanding the appeal of Gould's non-overlapping magisteria, I now think that RFRA properly applies in these circumstances.

Consider an example. Suppose that a new state law in a state with a state RFRA identical to the federal RFRA requires the teaching of evolution in high school biology class. Now suppose that a high school biology teacher in some public school in that state says she does not want to teach evolution because she is a devout Biblical literalist, and she regards it as sinful to teach that evolution is true. She is told by the principal that she must teach some other subject if she can't follow the state-mandated curriculum, or she will lose her job. She says that she is not qualified to teach any other subject and so the principal is effectively firing her for her religious belief. Imagine the following colloquy:

Principal: I understand that you believe that evolution is false, but the law doesn't require you to believe in evolution; it only requires you to teach it.

Religious teacher: But it would still be sinful for me to say that evolution is true.

Principal: Why?

Religious teacher: Because the Bible also says that lying is a sin.

Principal: But you wouldn't be lying, because evolution is true, notwithstanding the empirical inferences you draw from your religious beliefs.

I think it clear in this example that the religious teacher gets to be the judge of whether teaching evolution violates her religious beliefs, even though what makes it a violation is her religiously-driven, non-scientific view about an empirical fact. If she sues under the state RFRA, she will have shown a substantial burden. She still might ultimately lose her state-RFRA claim because the government has a compelling interest in teaching science in a science class, and there may be no less restrictive means than the one offered by the principal. The answer would depend on whether it would be feasible, say, to have a substitute teacher teach evolution, which in turn would depend on how pervasively state law requires that evolution be taught as part of biology. If it is just a few days out of a year-long curriculum, then having the substitute fill in would be a practical, less restrictive alternative. But evolutionary theory pervades (serious) biology, and so that might not be possible. The school can't be expected to bring in a substitute for half of the year or more. Nonetheless, even if the religious teacher ultimately loses under the compelling interest test, her claim gets off the ground, even though it is based on a false empirical view.

What about plaintiffs who mistakenly believe that certain non-abortifacient methods of contraception prevent implantation of a zygote (when the best scientific evidence indicates that they prevent fertilization)? Such plaintiffs present a somewhat harder case because their scientifically false belief about how IUDs and the morning-after pill function might be thought to be rooted in a simple scientific error, rather than a decision to follow religion rather than science. But I think that even that distinction probably doesn't hold up, and that therefore a court ought to defer to the plaintiffs' beliefs about how contraception functions.

The rejection of the authority of the scientific community is itself often rooted in religious beliefs. Biblical literalists and other religious conservatives may use a different epistemology. Moreover, sometimes it will be difficult to distinguish an empirical claim from a more purely religious claim, precisely because many religious claimants believe that these magisteria overlap. Suppose that in my high school biology example the teacher fervently (but mistakenly) believes that there is sound scientific evidence for "intelligent design." Can she no longer launch her state RFRA claim? Is the claim that the sacrament of the Eucharist transforms wine and bread into the blood and body of Christ a (mistaken) empirical claim?  If so, does that mean that Catholics could not assert a RFRA-type claim for an exception to a prohibition on the consumption of wine?

The best reason for providing religious accommodations (if one thinks that religious accommodations ought to be provided) is the recognition that people who are told by the government to violate what they believe to be their religious obligations suffer psychic harm as a result. The harm is not mitigated if they are also told that they are not really being asked to violate their religion because they are mistaken about some facts. So long as they adhere to their mistaken factual beliefs, they will experience the burden on their religious exercise in the same way as people whose factual views are not called into question when they assert religious claims for exceptions.

Nevertheless, the fact that a claimant's religious claim rests on a false empirical assertion can nonetheless undermine the claim in a number of ways. First, it is possible that upon learning the scientific facts, the claimant will change his mind and give up the claim.

Second, the empirical falseness of some claims that are not pervasively religious could be used to undermine the sincerity of the claimant's belief. For example, suppose that Koch Industries seeks a religious exception from the application of the Clean Air Act to one of its facilities because its controlling shareholders say that they believe that complying with the law--let's say by installing scrubbers in a power plant--would cause abortions, and that they have a religious obligation to avoid participating in abortions. The fact that there is no scientific basis whatsoever for the causal claim, in combination with its economically self-serving nature, would count in favor of a finding that the Koch Industries did not actually have a sincere belief.

Third, in assessing whether the challenged regulation is narrowly tailored to a compelling government interest, courts should be guided by the best science available, rather than the claimant's factually false beliefs. In these examples, the harm to be avoided--so far as the state is concerned--is the psychic harm of pressuring people to violate their religious obligations. The harm is not causing abortions or compelling a lie, so long as science says that no abortions are caused and evolution is real, even if the claimants think otherwise.

Accordingly, I think that for purposes of determining whether a law substantially burdens religion, plaintiffs are entitled to rely on sincerely held but false beliefs about empirical facts. The truthiness critique is truthy but wrong.