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.


Shag from Brookline said...

Mike's closing:

"The truthiness critique is truthy but wrong."

reminds me ot Seinfeld's George Costanza's view on lying:

"It's not a lie if you believe it."

So jumping through legalistic hoops at the behest of an employer's religious views trumps thousands of employees who may not share such views? Consider Charles Dickens in Oliver Twist:

“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

Scott said...

Shag, the point about the thousands of employees who don't share the religious beliefs of Hobby Lobby's owners comes up quite frequently in these discussions. I understand its emotional appeal, but if you're talking about an infringement on religious beliefs under RFRA, then there's really no comparison between the two groups. The religious beliefs of HL employees who do not think it sinful to use contraception are not being infringed, because nothing is barring them from using contraception - the debate is over whether HL can be made to pay for it. To create a genuine religious-burden conflict, you'd have to find a HL employee who sincerely believes that her religion *requires* that she use *employer-subsidized* contraception. To the best of my knowledge, such an individual has not yet come forward.

Shag from Brookline said...

Scott, did the Hobby Lobby case through the lower courts explore, with evidence, whether " ... there's really no comparison between the two groups."? Do the 1st A religion clauses provide protection to atheists, agnostics, humanists? If so, then RFRA flunks the 1st A religion clauses, unless RFRA recognizes protection for atheists, agnostics, humanists. Why rely upon a one-sided evidentiary proceeding, especially with significant numbers involved on the employee side?

David Ricardo said...

Mr. Dorf’s position here is ultimately unconvincing because he ignores a fundamental issue, and that issue is whether or not accommodation of religious views requires that government allow those who hold religious views of a highly sectarian nature the right to impose those views on those who do not hold them.

Accommodation that allows individual to practice their religion with minimal impact on others is and should be a cornerstone of America governance. Having Christmas as a national holiday and allowing schools to be closed on Jewish high holy days in areas with a heavy Jewish population are just a few examples of reasonable and uncontroversial accommodation. Historically many public schools declined to serve meat on Fridays to accommodate Catholic beliefs. Government has special tax rules for churches and their clergy. The armed services employ chaplains. Again all these things and their related activities are beneficial.

But what Mr. Dorf’s arguments ignore is the situation where one’s sincerely held religious beliefs require them to impose those beliefs on others. And everyone should understand that situations like Hobby Lobby and Little Sisters and Town of Greece and the like are not about religious freedom or not burdening religion, they are about sectarian group attempting to impose their religious practices on those who do not subscribe to those practices. They want sectarian prayers at official public government sessions because they have a captive audience on whom they can impose those prayers regardless of whether or not that audience wants to pray. They want to impose the religion of Creationism on captive students.

If one believes that contraception is wrong, don’t use it, no one is requiring any person to take birth control pills, submit to a vasectomy, insert an IUD into their body or purchase the morning after pill. But that is not what Hobby Lobby and its allies want. They want to deny the use of contraception to others; they want to make the decision that if a woman wishes to utilize legal birth control methods they, not she should make the decision and their decision is no. And they want to use the power of the employer to force their religious practices on their employees.

Organized religion makes no secret of this, they proclaim loudly that preventing individuals from engaging in activity that is against their beliefs is their goal. Were they in charge it is not just Roe that would be repealed, Griswold would be repealed as well.

Sincerity of belief is not the issue here, it is the question of whether or not accommodation of beliefs allows one group to restrict the freedom of those who do not believe in those principles. And so those who subscribe to the decision in Hobby Lobby and the coming cases that will expand it do believe in freedom of religion, as long as it is their religion and they get to dictate what that religion will be for all of society.

Joe said...

The religious beliefs of HL employees who do not think it sinful to use contraception are not being infringed, because nothing is barring them from using contraception - the debate is over whether HL can be made to pay for it.

Employees are "paying" for insurance coverage as part of the compensation of their labor. As one person noted, does the phrasing mean that HL "pays" for it if the person uses HL salary?

And, contraception is expensive. Thus, a burden is being put on the woman here. For some, it would "bar" women, since w/o the coverage, they cannot afford the possibly hundreds of dollars a month. If nothing else, it makes it harder. The whole point of employment based health care is because it is seen as the best approach here.

When a person's religious beliefs burden third parties in this fashion, government involvement, a right given for HL to apply such a burden & a burden based on religious belief, raises establishment problems.

Past case law suggests as much, if that is of any interest.

Joe said...

RFRA recognizes protection for atheists, agnostics, humanists

It does to the degree that such people have "religion" which many do. There are Jewish atheists, e.g., who practice Jewish ritual. Some religions don't involve the concept of God. Religions like Unitarian-Universalism welcome such groups too.

At some point, religious accommodations, which are allowed to some degree "favor" religion in some sense of the word, but our system singles out religion for "free exercise," so allows that sort of thing up to a point.

The question is if the breadth here and the negative affect on third parties etc. is acceptable.

Michael C. Dorf said...

These are interesting comments but they really have nothing to do with my post. Shag asks "So jumping through legalistic hoops at the behest of an employer's religious views trumps thousands of employees who may not share such views?" David Ricardo says that my "position here is unconvincing" and goes on to explain why he thinks that the Hobby Lobby ruling is incorrect because it allows religious claimants to impose their views on third parties. Both comments mistakenly assume that my post is meant to defend the ruling in Hobby Lobby. It is not.

As I say in the post, the "truthiness" argument I'm critiquing here "probably didn't play a role in the Hobby Lobby decision itself" and I'm interested in it "more generally." In the course of the discussion, I give examples--including Catholic sacramental use of wine--that have nothing to do with a religious exception being used to impose one's religious views on others. It is possible to disagree with an argument and still agree with the conclusion to which the argument leads.

Here's a useful analogy. Suppose someone says that "George W. Bush was a bad President in international matters because he increased funding to fight HIV/AIDS in Africa." If I then say that actually increased funding to fight HIV/AIDS in Africa was a good policy, that does not mean that I think Bush was, overall, a good President in international matters. It means that I think the speaker has identified a bad reason for thinking that Bush was a bad President internationally. The conclusion is correct, but the speaker ought instead to point to a better reason: i.e., that Bush started a terrible and unnecessary war.

Shag from Brookline said...

Mike, your analogy of the "good" and the "bad" ignores the "ugly" aspects of Hobby Lobby and Wheaton (as well the "ugly" aspects of George W's Administration on foreign invasions).

Joe said...

It is my understanding that some people here define "abortion" to include "aborting" a fertilized egg. This also isn't required for Catholic opposition to contraceptives. Big picture, it seems a bit of a red herring.

But, anyway, religious belief at times is going to include stuff that is scientifically wrong. How do we decide such things? Many rely on faith even in the face of a large amount of evidence. So, some sort of empirical evidence test doesn't appear to work in practice.

Anyway, it might not be germane, but to finish off a subject addressed in comments, I think the dissent in Hobby Lobby furthers religious liberty more. Compensation, including insurance coverage, allows each employee to make decisions that will involve a religious component.

Sometimes, it will be seen by others as irrational or based on wrong data. But, we have the right to do that, or dissent from what is generally accepted as "true." If we feel it in our gut.

And, the requirement here as discussed in the past does not wrongly burden the employer.

tekel said...

Mike, if I understand correctly, you are arguing that the harm to be considered in evaluating the RFRA claim is the psychic harm suffered by the sincere religious believer, with no consideration given to injuries inflicted as a result of the erroneous belief.

Assuming arguendo that is the case, do you think the Court left a way to draw a line beyond which the empirically false belief is just too far?

Michael C. Dorf said...

tekel: You do not understand me correctly. The psychic harm suffered by the religious believer is part of what is necessary for stating a claim under RFRA. Injuries inflicted on others as a result of the erroneous belief are relevant to determining whether the regulation is narrowly tailored to advance a compelling state interest.

For example, if a person has a religious belief that she must drink a quart of blood from a healthy human child every day or else the god Thor will zap her with a lightning bolt in five years, then a law forbidding criminal assault "substantially burdens" her religion per RFRA, because it criminalizes the conduct necessary for her acting on her religious/false-empirical belief. Nevertheless, she will lose at the next step because the government has a compelling interest in protecting children from attack, and criminalizing bloodthirsty attacks is precisely tailored to doing just that.

Andrew Missel said...

If the psychic harm to a worshipper only occurs because that worshipper erroneously (in an empirically falsifiable sense) believes that compliance with a law of general applicability will cause them to violate their religious beliefs, I'm not sure how they even have Article III standing. In other (non-religious belief) contexts, imaginary, unreasonable, or purely subjective future harms do not support the "injury-in-fact" prong of standing, and I'm not sure why it should be any different in the religion context, particularly given the jurisdictional nature of standing.

And even if you don't buy that, consider this: when the harm to a believer is based on an empirically falsifiable factual belief that the believer will have to violate his or her religious beliefs to comply with the law -- or perhaps even on an empirically falsifiable religious belief itself -- the harm, such as it is, is self-created; again, courts do not allow self-created harms to support standing.

David Ricardo said...


Mr. Dorf seems to be of the opinion here that the adjudication of a claim for accommodation under RFRA is independent of whether or not the claimant has actually suffered damages from the lack of accommodation. That is, it does not matter whether or not the claimant has actually been harmed only that he or she believe they are harmed.

Isn't this contrary to almost all other parts of the legal system? Don't I have to prove harm in order to prevail in a claim against a defendant in a civil procedure? Isn't it the case that if no harm has actually taken place no judgment in my favor is warranted even if in my mind enormous harm has been done?

Does Hobby Lobby and its related cases now stand for the proposition that a requirement for relief is only that claimants believe harm has been done even if the factual evidence must result in the conclusion that harm has not been done? And if so is that not a fundamental, indeed radical change in the American legal system?

Michael C. Dorf said...

Look, I'm as worried about the implications of Hobby Lobby as other good liberals are, but let's not get carried away. Psychic harm can certainly be Article III harm. Consider a diversity case in federal court in which the plaintiff sues for intentional infliction of emotional distress based on a state tort law that does not require a showing of accompanying physical injury. There is undoubtedly Art. III standing. Or consider a variant of one of the hypos I give in my post: A law forbids the use of alcohol, with no exception for sacramental wine; surely the inability to obtain wine for sacramental use is an Article III injury to a person who needs wine for a religious ritual, even if the reason he needs it is his mistaken belief that ritual use of wine will make it rain or will cure his cancer or whatever. The false belief in the efficacy of interventional prayer does not mean that people who are denied the means of praying for divine intervention have suffered no injury.

Stuart McPhail said...

An interesting post. But it seems that Prof. Dorf's solution eliminates one of the legal tests for a RFRA claim - that the law substantially burden a religious practice. Although the plaintiff has essentially unfettered ability to submit any proposition as their "religion," they should still have to prove a substantial burden. It shouldn't be enough for a plaintiff to say that the law substantially burden's their religion because it's their religious belief that the law does so.

Afterall, plaintiffs have to prove burden in other First Amendment cases involving speech. For example, in FAIR v. Rumsfeld, the law schools argued that military recruiters' presence violated the school's expressive association rights. But the Court gave no deference to this conclusion - rather, the Court accepted the law school's avowed expression (discrimination is wrong) but then conducted its own analysis on whether the military recruiters' presence interfered with the schools' ability to express that message (and found it did not).

Of course, both the law schools and Hobby Lobby are free to decide whatever belief it is they want to express. So if the law schools said that their view was that "one should never interact with military recruiters because that is wrong," perhaps they would have a better First Amendment argument (putting aside compelling interest, and the overall merit of any such belief). And Hobby Lobby could say it's religious belief is that contraceptives are evil.

I haven't taken a close look at exactly how Hobby Lobby parsed its religious belief. But once they state their belief, courts should have the power to determine themselves whether any particular law would burden that belief, including making factual determinations about the actual effect of a law.

Final point - this may all appear to be academic (but then this is a law blog) because plaintiffs would just draft pleadings with incredibly broad statements of belief. But there is some benefit to having parties spell out just what position they're taking. Then, even if the succeed in court, they are still subject to public opinion and ridicule. That would hopefully temper some opportunistic pleading.

David Ricardo said...

I agree with what Mr. Dorf says here, there is no question that psychic harm can take place and that a person so injured can sue for relief. But in any situation of harm, psychic or otherwise the legal process requires evidence of that harm, it requires the plaintiff to show that actual harm did take place and it is my experience in litigation support is that failure to show harm results in Summary Judgment for the defense.

And if it is a requirement to show harm by some standard of evidence, then the other side certainly has the right to introduce evidence that the harm, psychic or otherwise did not take place or is not harm that a reasonable person would accept. Truth, however inconvenient should at least be an allowable defense even if it is not controlling or determinative.

To conclude otherwise is to radically change the judicial system to one in which a claim of harm is accepted without substantiation and without the opportunity of the other side to refute that claim of harm. Such a position upends centuries of jurisprudence, it results in partial Summary Judgment (plaintiff claims harm, therefore harm took place, no need to hear from the other side) for the plaintiff without ever hearing from the defense.

And it seems to me that this is what the Hobby Lobby supporters claim, that the legal/regulatory system must accept their claim of psychic harm unchallenged, that the claim of harm is sufficient to conclude that harm has taken place and is real harm regardless of what is factually the situation. And as much as I would like not to, I cannot help but read Mr. Dorf as supporting that position.

Andrew Missel said...

Of course psychic harm can support Article III standing; that's not my point. My point is that psychic harm based on irrational/falsifiable beliefs maybe can't support Article III standing. Consider the following hypothetical: Z sincerely, genuinely believes that having to get a Clean Water Act Permit for his new factory will cause his daughter's death. (This is not a "religious" belief, but just a garden-variety irrational belief.) Z sues in federal court to enjoin EPA (or whoever) from forcing him to get a permit. Standing? Putting aside, for a moment, the obvious potential economic interests, the answer is no: Z's belief/fear in future harm is objectively unreasonable; he has no way of showing that there's a "reasonable likelihood of future harm" if he complies with the statute. See Warner-Lambert Co. v. Breathasure, Inc. (3d Cir. 2000). The question is why, for Article III purposes, the religious nature of the belief should alter the analysis at all.

And really, the same question goes for the alcohol ban in Prof. Dorf's comment: if non-religious irrational beliefs (alcohol will make me smarter and better able to do my job!) wouldn't support standing, why should religious irrational beliefs? (I'm genuinely asking this.) Is religion really "different" or special," even for Article III standing purposes? If so, why should it be?

Michael C. Dorf said...

I don't know how I can state this more clearly. I am making exactly one point: that a religious claim doesn't lose simply because it is predicated on a false factual belief. I am not saying anything else. The plaintiff still must show a substantial burden from a law or policy. Etc.

Andrew Missel said...

"I don't know how I can state this more clearly. I am making exactly one point: that a religious claim doesn't lose simply because it is predicated on a false factual belief."

Yes, understood. Which begs the question: why , for Article III (not RFRA) purposes, are religious beliefs based on false factual premises treated differently from non-religious beliefs based on false factual premises?

Unknown said...

"The best reason for providing religious accommodations ... is the recognition that people ... suffer psychic harm as a result."

Really?? I'd say that's way down the list. How about protecting their right to form their own conscience? Their basic liberty? Their dignity as a human being?

At one point, you mention a differing epistemology. It's worth noting that just as the U.S. is not a Christian nation, it is equally not a scientismic nation. Neither the law, nor our governing institutions are bound by the findings or beliefs of empiricism or material positivism.

Unknown said...

A Missel asks, "Yes, understood. Which begs the question: why , for Article III (not RFRA) purposes, are religious beliefs based on false factual premises treated differently from non-religious beliefs based on false factual premises?"

Because the Founders did not believe that it is either the job of governments or it's area of expertise to discern what is an acceptable religious belief.

I happen to agree with their opinion.

Stuart McPhail said...

I agree that the government doesn't get to decide whether a religious belief is true: no religious belief could pass that test. So, yes, criticism that Hobby Lobby's religious belief that contraceptives are evil is based on false conclusion are misplaced. After all, one could also argue the Hobby Lobby's belief in a divine being is also wrong.

But, what's interesting in the formulation Prof. Dorf provided is the distinction between a religious belief in x, and a deduction from that religious belief.

So, lets say, Hobby Lobby argued that (1) it has a religious belief that abortion is murder. But it further said that (2) it has no particular religious beliefs about contraceptives, it has just come to belief based on certain reasoning that contraceptives cause abortion. And further, based on that conclusion, (3) it has come to believe that ACA burdens its religious practice.

Proposition (1) would be unassailable in court. And proposition (3) would be a legal conclusion that the court is not required to give any weight to.

Proposition (2) is the interesting case. If its not part of the religion, then its really a causation argument - ACA harms Hobby Lobby's religious practice because ACA mandates contraceptives, contraceptives cause abortion, and Hobby Lobby has a religious objection to abortions. If (2) is wrong, then it looks like Hobby Lobby has failed to show a substantial burden, because it can't show any cause.

As I said above, however, Hobby Lobby could just say (2) is also part of its religion, and it might have done so. But courts probably should not assume propositions are religious propositions unless the plaintiff explicitly says they are.

Joe said...

"psychic harm as a result."

How about protecting their right to form their own conscience? Their basic liberty? Their dignity as a human being?

Is "dignity" not a sort of "psychic" harm? Is it a "physical" harm? A monetary one? What sort of "basic liberty"? Again, physical, monetary, or what?

I am left with a curiosity of just what that word means. It doesn't appear that Prof. Dorf diminishes it. Emotional distress, e.g., is a serious matter, even if "psychic."

Neither the law, nor our governing institutions are bound by the findings or beliefs of empiricism or material positivism.

Again, this is confusing. A typical civil or criminal trial very well is set up to favor empiricism. How are we to determine "substantial burden" of religious belief, e.g., if not by weighing empirical criteria?

I don't think such things really will alter the end result in these cases much of the time. The very issue includes parties that share Catholic doctrine that doesn't rely on when "abortion" occurs. Condoms don't cause abortion. Payment of them would violate the beliefs of various parties.

Push comes to shove, if they were told their beliefs were not backed up ("it isn't abortion"!), nothing much would stop them from expressing their beliefs to match those. Deep down, it might actually reflect what they believe -- repeatedly "facts" (like scientific proofs of God) turn out to be dubious cover for beliefs.

I guess along the margins this matters but I really don't know how much really.

David Ricardo said...

Joining Andrew on Mr. Dorf’s statement

“I don't know how I can state this more clearly. I am making exactly one point: that a religious claim doesn't lose simply because it is predicated on a false factual belief. I am not saying anything else “,

agreed and understood. No controversy there.

But what is unanswered is the degree to which a belief that is contradicted by fact requires accommodation. In the case of evolution, accommodation in the form of teaching Creationism is not allowed (at least so far) largely because the Creationism belief is contradicted by fact (see the decisions). This implies that the weight against accommodation when the belief is contrary to fact is very large indeed, almost (but not quite, Mr. Dorf’s point) controlling.

But the Hobby Lobby case and the related cases (everyone commenting here should review not only the Wheaton order but the order of vacate and remand and orders denying cert in the cases touching on Hobby Lobby that were issued after the Hobby Lobby decision) seem to give almost no weight or consideration to the fact that the belief is contradicted by fact. Although he may not intend it, the interpretation I have from Mr. Dorf’s comment is that a religious claim of burden is largely independent of and not governed by fact. Note this passage from his original post.

“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.”

(emphasis added)

That somewhat (not entirely) contradicts Mr. Dorf’s statement that

“The plaintiff still must show a substantial burden from a law or policy. Etc”.

I do not know how a substantial burden can exist (legally, not psychically) from a position that is not factually correct ie, how does the truth legally burden a plaintiff? And I simply cannot reconcile Mr. Dorf’s position that the courts ought to defer to the mistaken beliefs with the idea that plaintiff bears the burden of proof of their harm. Deferring to mistaken beliefs gives away a large part (not all) of the store. The defense has suffered a substantial loss even before the trial begins.

The correct legal position, it seems to me, is when (absent other circumstances) a person suffers psychic harm from a belief that is contradicted by fact the proper legal decision is for the court to say to the plaintiff “you do not suffer harm because of the actions of the government, you suffer psychic harm because you choose to believe something that is simply not true.” That is the situation with evolution and Creationism, it should be the situation with respect to contraception.

Ryan said...

You lost me with the paragraph beginning with "The rejection of the authority of the scientific community is itself often rooted in religious beliefs . . ." And your reference to Catholic dogma seems to suggest that you're missing an important nuance:

The Catholic belief that bread and wine becomes the body and blood of Christ is not only an article of faith, in that G/d has specifically provided the answer, but also is fundamentally anti- (or extra-) scientific--a miracle causes the bread and wine to literally change into flesh and blood in a manner that cannot be observed by the senses.

Conversely, Hobby Lobby didn't claim, e.g., that the sinfulness of levonorgestrel (Plan B) was a divine revelation, or that G/d teaches that it's an arbortifacent. Rather, its religious claim implicitly incorporate the secular. scientific understanding of how levonorgestrel works.

Justin said...

I tend to disagree with Professor Dorf's approach; while understanding his desire not to conflate religiously-imposed facts and mistakes of science, I think his response has the separate effect of conflating the sincerity of a religious belief, which courts cannot question, and the government action's burden on those beliefs, which is quite within the Court's jurisdiction.

If Hobby Lobby says "my religion compels me not to use contraception X," the Court must, in order to determine its sincerity, figure out why the religion purports to require it. (It does not need to determine whether the religion is correct.) If Hobby Lobby says "because these contraceptions cause abortions," then the court is left with asking a second question - does your religion tell you that they do, or does your religion merely bar the use of contraceptions which bar abortions. If the answer is (sincerely) the former, the Court cannot further inquire; but if it is the latter, the Court must REFRAME the religious belief as it is - that the Court must determine whether requiring the plaintiff to pay for something that has no negative effect on his religious values does indeed substantially burden his religious beliefs. It does not.

Of course, this belief is part of a broader belief that in order to save RFRA from lacking any intelligible principle, it must engage in balancing between the government interest and the burden on a sincerely-held religious belief. Otherwise, there's obviously at least a perception of a problem with a Court telling a plaintiff that they have to go to hell because it disagrees with them on facts.

Michael C. Dorf said...

This will be my last comment on this thread, which I think has nicely surfaced the issues I raised in my main post, as well as some others. I want to focus on Justin's last comment, which I think states the argument against my position as well as it can possibly be stated. Still, I remain where I was.

Justin says that if Hobby Lobby contends that its religion forbids using contraceptive X because X causes abortions, "then the court is left with asking a second question - does your religion tell you that they do, or does your religion merely bar the use of contraceptions which bar abortions."

Substitute a different example and you'll see what's wrong with that. Suppose instead of saying that the religion forbids abortion, the claimant says he needs to use wine for sacramental purposes in violation of a law that forbids all alcohol. Is the court left with asking the further question of why? And if so, suppose that the answer is this: "Because my religion teaches that in the sacrament of the Eucharist, wine becomes the blood of Christ, and my religion commands me to drink His blood." Certainly the Court would not then say that there's no burden because wine can't be transformed into the blood of a man who died 2000 years ago, so it wouldn't do the claimant any good.

Now, as Ryan White notes, the belief in trans-substantiation is not a scientific belief but a belief in a miracle. It is inherently religious. By contrast, the mistaken belief that X prevents implantation of a zygote when it really blocks fertilization is itself a (mistaken) scientific belief. As my original post indicated, I UNDERSTAND that distinction. I just don't think it should matter for RFRA purposes because, as a general matter, secular courts do not inquire into the reasons behind religious objections.

Suppose that Jane is an atheist and then one day a rock hits her on the head, creating a false memory that she promised her now-deceased father that she would live as a devout Baptist. Accordingly, she does so. Does Jane's mistaken belief about the source of her religious obligation mean that she's not entitled to the same religious exceptions as other Baptists? After all, her false belief that she made the promise to her father is not itself a religious belief, but a mistaken belief about a fact in the world. Nonetheless, Jane should be treated as any other Baptist would be. In general, courts simply do not, and should not, look beyond the reasons for religious objections--except as relevant to determining sincerity. And one can be sincere, even if one is mistaken about any number of predicates for the sincere belief.

Okay, keep this going if you like, dear readers, but as you'll see from the next post, I've moved on.

Dorf out.

Justin said...

Professor, i'm afraid you completely misunderstood my point. If the plaintiff says that God tells us that the wine turns to blood, the court's inquiry is at an end. It's only when the plaintiff says he thinks he read that in blood chemistry quarterly that he loses.

Unknown said...

Alright, I'm going to try again to address this issue, but this time from a different vantage. For this purpose, I will use something I'm better versed in, Just War Theory. This theory involves two components: a complex test to determine whether a given conflict is just, and a philosophical statement that a conflict which fails this test is immoral. The first is, at least in part, an empirical analysis; the second is not.
So, when I assert that the Iraq War, which began in 2003, is immoral based on Just War Theory, and furthermore that I hold this as an article of religion, there are two different aspects to this assertion. If the state were called upon to adjudicate my assertion, for example if I claimed Conscientious Objector status, then this resembles in a meaningful way, the situation presented by the Hobby Lobby decision.
In my hypothesis, I think we agree that the court would have no interest in determining the validity or "truth" of the philosophical aspect of my assertion. But, it would definitely look at the empirical aspect, that is, how I had applied the theory's test to the facts surrounding the conflict. If I had clearly misapplied the test, or failed to determine the facts objectively, then my philosophical conclusion would be irrelevant.
The problem with many religious claims today, as we see in the Hobby Lobby case, is that the delineation between these two aspects is not clear, or at least, it's not clear to all parties. Rather than declare a claimant "wrong," because his claim appears to be inconsistent with current findings of natural science (or political science, in the Just War case), it would seem more appropriate to engage in a conversation about how the religious claim was formed, and upon which empirical findings (if any) it's been made. In a sense, we need to compel more thoughtful exercise of religion in these cases, which is reasonable, as it may conflict with other liberties and societal needs.

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Sandie said...

Unless Hobby Lobby is also exempt from paying taxes I'm afraid that they are not going to be relieved of whatever religious angst they were having forced upon them. Obviously HHS will have to cover HLs tab just as it does with tax exempt birth control objecting institutions and churches. As HHS is paid for by the American taxpayers and no one person or corporation can dictate where their taxes go HL will still have imaginary blood on their hands.Irony anyone?

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