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.