Monday, July 14, 2014

Hobby Lobby Post-Mortem Part 7: Beyond Belief

By Michael Dorf

In recent posts, both Professor Buchanan and I have suggested that the inquiry into sincerity is likely to become more rigourous in the evaluation of future RFRA claims, given the Hobby Lobby majority's (in my view appropriate) willingness to defer to a claimant's account of what his--or in the case of a corporation, its--beliefs require. Here I want to problematize the sincerity question, and to some extent, a core assumption of religious freedom litigation, by noting the different ways in which belief itself may or may not figure in religious exercise.

The standard account of the relation of religious belief to religious practice is causal. Jane feels a religious obligation to attend church on Sundays because she believes in the teachings of her religion, which commands her to attend church on Sundays; Bill feels an obligation to refrain from participating in abortions because he believes in the teachings of his religion, which say that participating in abortions is sinful; etc.

But not all religious obligations work this way. Many people who consider themselves religious do not simply accept the authority of religious leaders or books; they pick and choose. For example, the Catholic Church condemns all forms of artificial birth control, but most practicing Catholics reject this view. Suppose Gail is a Catholic who rejects the Church's teaching on contraception but is morally opposed to abortion. Even though the Church's teaching is not a sufficient reason for Gail's opposition to abortion, we would nonetheless say that her objection to abortion counts as a religious objection, so long as Gail herself regards her opposition to abortion as rooted in Catholicism.

Moreover, religious belief may not play any role in the sense of religious obligation. I have relatives who do not believe in God but who keep kosher as an expression of Judaism. (The role of belief in God in Judaism has varied over time, as summarized here.) Indeed, I myself do something like this. Throughout the year, with the exception of wine, I follow a kosher diet, but only accidentally, because vegan food is kosher (except that vegan wine isn't necessarily kosher). However, during Passover, I refrain from eating leavened bread. Why?

To be honest, I have a difficult time explaining why. I don't think that eating leavened bread during Passover is wrong. I don't think that I will burn in hell if I eat leavened bread during Passover. I don't even refrain from eating leavened bread during Passover because I would feel guilty if I ate it. The best account I can give is it's just something I do. It is not rooted in any belief of any sort. Yet I would characterize my observance of the dietary rules of Passover as a religious practice. And I'm nearly certain that the courts should do so as well.

Recognizing that religious practice need not be rooted in religious belief could raise particularly hard questions where the religious claimant is a corporation. In Professor Buchanan's post on Friday, he raised the possibility of a corporation claiming to have a religious objection to paying the minimum wage. If the hallmark of a religious practice is religious belief, we can at least imagine a court trying to probe the sincerity of the underlying religious belief: Does the corporation (or the people designated by state corporate law to make ultimate decisions for the corporation) really think that God disdains the minimum wage? But once we recognize that belief is not necessary to making an objection a religious objection, it is difficult to see what the sincerity inquiry would look to determine.

Part of the problem here is figuring out what counts as a "religious" objection. The case law and the best legal scholarship on the question (including by my former colleague Kent Greenawalt and my future colleague Nelson Tebbe) make clear that belief in God is not strictly necessary for a system of action and belief to count as religion. What does make such a system religious--except in the case of paradigm religions--is much harder to say. In my own example, my observance of Passover is connected to a paradigm religion, and so I probably benefit by association.

Supposing that a corporation could find or invent a religion that condemns the minimum wage or environmental regulation or whatever. At least in principle, it would be possible for the corporation to practice that religion without believing any particular propositions about God or anything else. And if so, demonstrating insincerity about propositional beliefs would be beside the point.

Do I think these issues are likely to arise in practice? Probably not. As I have said before, I think the PR hit for most businesses would be too great. But I raise the far-fetched hypotheticals simply to problematize what seems to be a common assumption: that religion, as protected by law, is exclusively rooted in belief. It goes beyond belief.


David Ricardo said...

I do not believe there are any objections to what Mr. Dorf has written here, but that is not the core nature of the problem. The issue here is that RFRA imposes a standard of a “substantial” burden. But what does “substantial” mean in this situation?

Consider the Hobby Lobby case. Hobby Lobby has been given “person” status by the Court. But Hobby Lobby the corporation cannot engage in religious practices, indeed Hobby Lobby the corporation cannot even have religious beliefs. Furthermore Hobby Lobby the corporation cannot reproduce, it cannot use birth control devices, it cannot have an abortion. These facts illustrate the absurdity of the position that Hobby Lobby has standing as a person with respect to RFRA.

But the Court has attributed the beliefs of the owners of Hobby Lobby to the corporation to legitimize its standing under RFRA. So consider the burden here. Hobby Lobby the corporation is not being burdened, even an insubstantial burden is impossible. The owners of Hobby Lobby are not directly being burdened; they are not compelled to use contraception devices they consider to be the equivalent of an abortion, they are not in fact being compelled to do anything at all with respect to practice of their religion. No part of ACA is directly impacting their behavior, practices or beliefs.

So the burden on the owners of Hobby Lobby is that a corporation which is an independent person according the Court is required to facilitate the access to contraception to Hobby Lobby employees none of whom have any direct relationship to the owners of Hobby Lobby. And this is ruled a “substantial” burden on the ability of the owners of Hobby Lobby to practice their religion? Incredible.

RFRA is bad law because it involves an unquantifiable and unknowable concept, “substantial burden”. Sincerity of belief or even belief itself is not the issue here, it is the impossible task determining whether or not a substantial burden exists. And the Court has basically solved this problem by agreeing that almost any burden however indirect or inconsequential to ‘believers’ is “substantial”. That is the true legal catastrophe of this ruling.

James said...

The missing piece that continues to trouble me is this: Hobby Lobby isn't "freedom of religion." It is "freedom to discriminate, based on religion." That sets it apart from other religious freedom cases. In the instance of contraception the response seems to be "well, nobody is entitled to have somebody else pay for contraceptives," which is legally correct in the sort of narrow artificial way that, e.g., Justice Alito tends to reason, but disregards the inherent discrimination in targeting contraceptives for female employees and dependents while allowing, as numerous sources assert, the Hobby Lobby pension plan to invest in companies that make those contraceptives. And already there are efforts to push the "freedom to discriminate based on religion" farther, into the area of discrimination against LGBT individuals. I realize that this is not really the topic of your post, but I am surprised that none of your posts addresses this elephant in the room. Do you feel that it is adequately covered elsewhere and you don't need to weigh in? Do you disagree with my characterization of the decision? If so, what am I missing?

James said...

And as a postscript, I completely agree with David Ricardo, whose post came in while I was writing mine.

Paul Scott said...

I would not describe as religious your observation of some of the rules of Pesach any more than my (atheist), wife (atheist) and wife's parents (atheists) "celebration" of Christmas. It is a simple in-group cultural observation, probably made stronger by a combination of being a minority and having a very recent and terrible series of events happen to your culture.

Were you ever to find yourself in a situation where a Court would determine your objections, to the extent they reject your veganism they should also reject your observance of some rules of Pesach. Those two things do not have identical roots, but if you are honest with the court, they are on equal, non-religious, footing.

Michael C. Dorf said...

In response to the queries by James, my first post-Hobby Lobby post, as a caveat to point 1, noted my view that the Court ought to find that the compelling govt interest in combating anti-LGBT discrimination overrides religious objections, but also my worry that Alito's opinion could be read as unclear on this point.

I am also a signatory to a letter that will shortly go to the Obama Administration urging the government not to provide religious exceptions from the planned exec order barring LGBT discrimination by federal funds recipients.

Michael C. Dorf said...

Paul's position has considerable logic to it, but I meant to point out in my post that it would sweep very far, and would privilege religions that demand propositional belief as a condition of adherence, which is hardly universal.

Joe said...

Word choice is tricky in this area. For instance, some don't like the word "religion." It comes off as irrational belief in fantasy and you get the scorn and talk about flying spaghetti monsters.

But, "religion" for many people is not based in some strong belief in such a being with the typical guilt that if you don't follow the rules, the God will damn you etc.

It is a set of rituals, let's say, and practices etc. that often have more of a cultural aspect. But, I don't think we suddenly can decide "well you don't really have a religion then" and partially for problematic line drawing reasons.

Andrew Koppelman has written about how "religion" includes such rituals that are separate from belief and similar matters of conscience. And, they are part of what makes religion important -- a special sort of community.

In some sense, there is a feeling of "obligation" if not one tied to belief in God. This does go back to the big picture idea of what is "religion" but as applied to Christianity, Judaism etc. it is something of an easy question.

What "religion" is can be tricky, but if start trying to say that so-called cultural Catholics are not really "Catholic" and shouldn't be protected as such because they don't "believe" ... we will have problems.

But, if those who support HL try to be too extreme, yeah, the unfortunate result will be, selectively, less respect and protection.

Michael C. Dorf said...

Another way to put my last point is that I don't think it's clear that there's a sharp line between culture and religion. So I'm comfortable identifying my RELIGION as Jewish even though I am generally (but not entirely) non-observant and even though I do not hold any of the beliefs (about God, miracles, etc) that are held by most observant Jews.

Joe said...

Also, yes, "could be read as unclear," especially how Alito worded it.

Federalism has trumped federal age and disability protections as applied to state governments. What anti-discrimination laws will be upheld in the face of RFRA?

Perhaps thankfully the matter was not pressed when the Elane Photography case was not granted cert.

Stuart McPhail said...

To return to the sincerity point, I agree sincerity is a legitimate question and that Hobby Lobby puts more pressure on it. Nonetheless, I also sympathize with courts' hesitation to rely on that prong. Although I haven't done a systematic review of RFRA or RLUIPA cases, I suspect few cases have lost on sincerity grounds (the only one I know of have been prisoners converting to Rastafarianism and arguing that they have a religious right to marijuana; but even those cases usually cite compelling interests as alternative grounds).

Courts' reluctance is understandable: the normal tools for judging sincerity just don't really fit with religious belief. I can think of three grounds on which to attack sincerity and which one sees being used against witnesses of all sorts: (1) inconsistent prior or current statements/acts, (2) incredulity of asserted statements, and (3) personal traits like demeanor or prior acts of lying. But (1) and (2) don't fit well with religion. And, with Hobby Lobby, (3) wont help with religious corporate claims.

Re (1) - one can always justify a prior inconsistent statement or act by stating that they converted after the statement, or that they came to a new understanding of their religion, or that, while they have sinned in the past (or are even currently sinning now), they cannot be made to further sin by government regulation. Of course, a court could disbelieve
these justifications, but on what grounds would a court do so? We're put in a circle.

Re (2), the credulity of the asserted belief is beyond the power of the court to judge (as Prof. Dorf discussed in his truthiness post). So while a secular witness's assertion of some incredible fact may lead the court to not believe him, that wont work for religious witnesses.

Re (3), that seems to be the only ground on which a court could judge a natural person's assertion of belief. If they cant say it with a straight face, then perhaps they are lying. But a judge can't call a corporation to the stand and watch it testify. It'll be left with a lawyer submitting some affidavit stating that the corporation sincerely believes x, y, and z. It'll be dry and without any indication allowing one to judge credibility. And with regard to showing that the corporation is a liar based on prior acts of lying - corporations aren't required to maintain a continuous attitude or personality. While a person who habitually lies may likely be lying on the stand, cant the same be assumed for a corporation? Perhaps it was just a particular agent who lied, or perhaps a change in management would wipe clean any taint of past acts.

So it's not clear to me what tools a court could use to judge whether a corporation is telling the truth. Perhaps we follow the Court's lead and judge the *owner's* sincerity, rather than the corporation's. That's still difficult, but at least (3) would be available. We run into the problem, however, of aggregating sincerity. And it opens up a tricky question - can a corporation's sincerely believe a belief that it's owners do not?

Stuart McPhail said...

Forgot one more - (4) the self-serving nature of the belief. A belief that requires the holder to donate money to charity is likely to be more sincerely held than a belief that says the holder gets to get high as much as they like.

But Hobby Lobby didn't question the sincerity of the belief just because it was self-serving to Hobby Lobby and its owners. And many religious objections are self-serving: a prisoner may want to obtain a religiously observant meal partly because those meals are known to be of better quality, or a conscientious objector may not want to go to war partly because they don't want to be killed. So I don't think this factor would have much weight, if any.

David Ricardo said...

Two points/questions.

First, with respect to the sincerity issue, is it the position of Mr. Dorf and others that the courts must give unconditional deference to the sincerity of plaintiffs, that is, the fact that the plaintiffs are filing a claim is conclusive evidence of their sincerity? Or is it the position that the situation is like others in the law, that sincerity is a rebuttable presumption and that if the defendant (the government) contests the issue of sincerity and presents evidence of lack of sincerity that the burden of proof then falls to the plaintiff to show that the beliefs that are purportedly being substantially burdened are sincere?

If the first position rules than it would seem that the Court has made a major and significant change in the legal process, something that they do not have the power to do and should be done by legislation if it should be done at all. On the other hand if the second position holds then the courts will find themselves in the position of having to determine as a matter of fact whether or not the plaintiffs do have a sincere belief, something that none of us want to see the courts involved in for reasons set forth by Mr. Dorf.

Either way it’s a mess.

The second point is with respect to Mr. Dorf’s endorsement of the position that the government not grant exceptions to non-profits in its order forbidding discrimination with respect to employment and those receiving government contracts/funds. Am I the only person who is confused, bewildered, bothered, astounded and astonished on this issue? That organizations who claim that because they only operate for the public good and for the betterment of the public and for the public interest they should be exempt from paying taxes and get other privileges, that those organizations want to the right discriminate in their employment practices for projects supported of public funds?

Is their hatred of the gay community so great that they cannot see how ugly and awful and hypocritical this position is? And no, no one should state that this is part of freedom of religion or has a basis in some other pure motive. Such a position is bigotry plain and simple.

Joe said...

Interesting case out of 7CA over humanists not wanting to be labeled a "religion" even to the degree of signing up to become an Internet minister (ULC Church etc.) for purposes of being marriage officiants.

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If the hallmark of a religious practice is religious belief, we can at least imagine a court trying to probe the sincerity of the underlying religious belief: Does the corporation (or the people designated by state corporate law to make ultimate decisions for the corporation) really think that God disdains the minimum wage? But once we recognize that belief is not necessary to making an objection a religious objection, it is difficult to see what the sincerity inquiry would look to determine.LOL coaching
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