Thursday, July 10, 2014

Hobby Lobby Post-Mortem Part 5: The Burden on Religion From the Majority's Ruling in Hobby Lobby

-- Posted by Neil H. Buchanan

Professor Dorf's string of posts this week (here, here, and here) about the Hobby Lobby decision examined some of the most important issues and implications of this term's most prominent Supreme Court case.  The posts on Monday and Tuesday drew an unusually high number of readers to our comment board, demonstrating the intense interest in the decision.  Here, I want to explore a further implication of Tuesday's post, in which Professor Dorf confronted what I originally thought was an extremely strong argument against the Hobby Lobby majority, which he called the "truthiness argument."  After explaining the argument and Professor Dorf's counter-argument, I will describe below why I think the Hobby Lobby majority's opinion is actually going to be bad for religion in America.

The plaintiffs in Hobby Lobby asserted that their fundamentalist Christian religious beliefs prevent them from being complicit in providing abortions.  They then argued that the Affordable Care Act requires companies like theirs to provide health care coverage to employees that enables some employees to obtain abortions with no co-pay.  The "abortions" that the plaintiffs describe, however, are not recognized by medical science as abortions at all.  In particular, while the plaintiffs think that two forms of contraception -- IUD's and so-called morning-after pills -- can cause the deaths of living human beings, the accepted medical reality is that those contraceptive methods work before a pregnancy has begun.  Thus, the science says that these are not abortions, but the plaintiffs feel that that is not true.  Opponents of the plaintiffs' argument thus invoked Stephen Colbert's famous neologism of "truthiness," which can be defined as "the quality of seeming or being felt to be true, even if not necessarily true."

In his Tuesday post, Professor Dorf does not question the scientific consensus, but rather asks what is so unusual about people making religious claims in court that are not backed up by science.  Religion is all about accepting matters of faith, so it should hardly surprise us when a person asserts that their religion requires them to believe things that those outside the faith do not believe, and which cannot be true as a matter of secular knowledge.  (Perhaps his best example of this was sacramental wine being thought by believers to be the blood of Christ.)  The point, therefore, is that a claim cannot simply be waived off for being based on truthiness rather than truth, because the whole inquiry under these cases is about what people believe.

Like Professor Dorf (and many of his readers), I initially resisted this logic rather strongly.  Ultimately, however, he is right.  In the course of a spirited (if occasionally exasperating) exchange of comments, he boiled his argument down to this: "I am making exactly one point: that a religious claim doesn't lose simply because it is predicated on a false factual belief."  The interesting questions arise from what he said next in that comment: "I am not saying anything else. The plaintiff still must show a substantial burden from a law or policy. Etc."  In other words, it is still possible to consider the scientific validity of beliefs at other stages of litigation, but it is not acceptable to say that the beliefs themselves cannot be considered simply because they include factual assertions that can be disproved.

Where does one go from there?  To succeed under the Religious Freedom Restoration Act (RFRA), plaintiffs must show that a law creates a "substantial burden" on their religious exercise.  If they do so, the law will still be allowed to stand if it furthers a "compelling governmental interest" by the "least restrictive means" possible.  As Tuesday's post points out, the plaintiffs do not automatically lose merely because their assertion of religious belief is based on factually false beliefs, but this merely relocates the battleground.  It does so, moreover, in a way that religious believers are likely to find rather uncomfortable.

Justice Ginsburg's dissent points out that the majority opinion blithely reads the word "substantial" out of RFRA.  That is, even though the legislative history shows that the word "burden" was initially unmodified in earlier drafts of the law, the adjective "substantial" was added in order to make sure that laws would not be negated under RFRA on the basis of insubstantial concerns.  Although the majority simply ignores this distinction in Hobby Lobby, it is certainly possible to imagine future litigation over this question.  With respect to "truthy" arguments, therefore, we could imagine extremely uncomfortable judicial inquiries into just how outlandish a religious belief might be, with conclusions like this: "We do not doubt that your religious exercise is burdened by having to pay for vaccines that -- according to your religious beliefs -- destroy the ultimate reproductive capacity of young girls, but you're wrong about that.  And that means that your religious concerns are not burdened in a substantial way, because you really are wrong.  Your religious concerns are insubstantial.  Case dismissed."

Let us imagine, however, that future courts take the majority's hint and read the substantiality requirement out of RFRA.  Or, assume that religious claimants are willing to risk losing a substantiality argument, because they will also win some.  As the dissent points out, religious believers and nonbelievers alike should be troubled by the logical implication of allowing people to rely on truthy false claims, because the most likely point of contention will become whether the substantially burdened religious beliefs are "sincerely held."

The discussion about Professor Dorf's Tuesday post contained hints to how Hobby Lobby will turn religious sincerity into a major battleground.  Consider two plaintiffs.  One says, "I oppose abortion, which has a medical meaning to which I have no objection.  And I oppose IUD's, because they cause abortions."  The other says, "I believe, based on my religion, that what IUD's do is abortion, which I find sinful."  Because RFRA requires us to honor sincerely held religious beliefs, we are apparently allowed to say to the first person, "Your objection is not based on a sincerely held religious belief, so you lose," whereas we are required to say to the second person, "Your objection, although factually wrong, can go forward."  (And certainly, if a third person says, "I oppose contraception in general as matter of religious belief," then there is no truthiness objection at all.)

Anyone who wants to win his case, therefore, knows what the magic words are.  Some people, of course, will be unwilling to testify falsely under oath about the content of their religious beliefs.  Others, however, will be able to convince themselves that they are doing the Lord's work by characterizing their beliefs in a way that accomplishes their ultimate goal.  Thus, in order to win, a plaintiff will know what to say.  But of course, the government will know that people will have this incentive to misrepresent (or at least fudge) their sincere religious beliefs, and it will thus become ever more important to challenge people's sincerity regarding their assertions of religious belief.

This, I think, is what Justice Ginsburg had in mind at the end of her dissent, when she wrote: "There is an overriding interest, I believe, in keeping the courts 'out of the business of evaluating the relative merits of differing religious claims,' Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the Establishment Clause was designed to preclude.'  The Court, I fear, has ventured into a minefield ...”

The Hobby Lobby majority has essentially invited a larger range of plaintiffs (corporate "persons") to make religious claims under RFRA.  For a variety of obvious reasons, this new group of plaintiffs is especially likely to make insincere religious claims in order to avoid a variety of laws.  Religious people should not look fondly upon the prospect that secular courts will be called upon to pass judgment upon religious sincerity, especially when inquiring into sincerity will surely result in courts' assessing the factual validity of religious claims.