Permission Slips are Not Rights: How Hobby Lobby’s Victory Cheapens the Right to Personal Liberty


This summer, the Supreme Court’s decision in Burwell v. Hobby Lobby was the subject of much public controversy and discussion. In that case, employer Hobby Lobby challenged provisions of the Affordable Care Act (“ACA”) which mandated that certain corporations cover birth control for female employees. Hobby Lobby argued that the mandates violated the company’s sincerely held religious beliefs. In particular, Hobby Lobby argued that the Religious Freedom Restoration Act (“RFRA”) provided strict protection for its right to the free exercise of religion, and that the ACA’s mandates were correspondingly illegal.

The Supreme Court sided with Hobby Lobby. Though some pundits have been quick to applaud the decision as a victory for personal freedom, deeper consideration reveals a more ominous result.

Religious freedom has long been held as a cherished and respected right in the United States. The Founding Fathers—inspired by an Enlightenment philosophy which stressed freedom of conscience and independence of the mind—had a deep appreciation for the importance of religious freedom as a political right. Thomas Jefferson, for instance, requested before his death that his authorship of the Virginia Statute of Religious Freedom be included among his life’s greatest achievements on his tombstone. It’s no surprise, then, that the First Amendment requires that Congress refrain from “prohibiting the free exercise” of religion (the Free Exercise Clause).

But the First Amendment also provides, specifically, that “Congress shall make no law respecting an establishment of religion” (the Establishment Clause). This Clause has been generally interpreted as forbidding the government from legislating on or otherwise intervening in matters of religion. On this interpretation, the government can neither favor one religion over another, nor can it act to promote religion as such (as against no religion)—it must take a hands-off approach to religion.

Though in the past, Supreme Court decisions have required the government to demonstrate a “compelling” interest before burdening a person’s free exercise of religion, the Clause lost vigor in the 1980s and 1990s, when some of the Court’s decisions weakened constitutional protections for religious freedom (notably, in a controversial case, the Supreme Court upheld governmental practices that burdened Native Americans’ use of psychoactive substances in connection with religious rituals). Congress responded in 1993 by enacting strict statutory protection for religious freedom in the Religious Freedom Restoration Act, which expressly precludes government from “substantial[ly] burden[ing] a person’s free exercise of religion . . . .”

In the Hobby Lobby opinion, the Court specifically held that the ACA’s contraceptive mandates “substantially burdened the exercise of religion” by requiring individuals “to engage in conduct that seriously violates their sincere religious belief that life begins at conception,” or suffer “severe economic consequences.” In sum, the Court held that Hobby Lobby’s religiously motivated opposition to the ACA warranted a special exemption from the law. The Court’s decision thus involves not only a clash of litigants, but an apparent clash of principles as well. The Free Exercise Clause and RFRA seem to imply that those who hold religious beliefs deserve special protection and should not be legislatively compelled to violate those beliefs. But the Establishment Clause seems to say just the opposite—that citizens are to be treated equally before the law, regardless of their respective ideologies.

At root, the decision reaffirmed the underlying premise of RFRA, and of the First Amendment as currently interpreted: that freedom of religion is a primary, stand-alone right, worthy of special protection. Rather than holding true to the principles underlying the Establishment Clause, the Court held that Hobby Lobby’s beliefs were to be given special status under the law because they were religious ones. That’s a dangerous premise to adopt, because it misconstrues entirely the right to religious freedom and its place among the hierarchy of individual rights.

In treating religious freedom as a primary, the Court invites the possibility of a conflict between the Establishment Clause and the freedom to practice one’s religion. But the prohibition of state-established religion is in fact a means to the protection of religious free exercise. Many of the first colonists came to the New World in search of the freedom to practice their religious beliefs because they were seeking asylum from persecution by the state-sanctioned Church of England. The government does not need to sponsor a church to sponsor religion and infringe on religious free exercise. This is why the Supreme Court was wise to rule on the side of the Jewish families who sued New York state officials who composed an official prayer for recitation in public schools. By its hands-off approach to religion in general, the Establishment Clause thus helps to protect the individual’s free exercise thereof—whatever its form.

The Court’s decision in Hobby Lobby not only compromises religious liberty, but the broader right to ideological liberty from which it derives. By favoring the religious as against the non-religious, the Court reaffirms the establishment of favored and disfavored classes of persons based solely on whether individuals believe in a mystical deity or force. But the right to religious freedom is a necessary side-effect of the more fundamental right to personal liberty in the pursuit of happiness, which persons of all intellectual stripes should enjoy.

At the core, we need the right to personal liberty in order to produce the values that make our survival possible, and to pursue the occupations and ends that make our lives worth living. An artist, for instance, needs the liberty to paint, or write, or play music, in order to sustain and enrich his life in the pursuit of his happiness. His rights to believe in whatever god he likes, and to paint grand murals honoring that deity, are only leaves off the branch of personal liberty on the whole tree of rights that makes his life possible.

We need ideological liberty—the freedom to practice whole systems of ideas—for these same reasons. Consider the persecution of Galileo, when he proposed his heliocentric theory of the solar system. Galileo sought to produce a coherent model of the universe, in accordance with his own astronomical observations. This scientific approach came into direct conflict with the established conclusions of ecclesiastical scholars and the Vatican. Without the right to openly seek and advocate the ideas that would help him to flourish and succeed, Galileo was condemned to imprisonment until his eventual death. The right to ideological liberty would have protected Galileo’s freedom to act on his beliefs—whether right or wrong in the eyes of his fellow men. The freedom to be religious—or not—comes from that same basic right to ideological freedom, which comes from the more general right to personal liberty. In fact, ideological liberty is the common thread that ties together our First Amendment rights, from freedom of speech, to freedom of the press, to the right to petition the government, to freedom of assembly, to freedom of religion.

Unfortunately, personal liberty has been eroding in this country for over a century. Most recently, public revelations have confirmed that the NSA has been conducting widespread domestic surveillance and data-mining on millions of innocent citizens for many years. The Controlled Substances Act dictates what we may and may not put into our own bodies. The Federal Communications Commission dictates what we may and may not say in the public forum. The Supreme Court has held that under the Interstate Commerce Clause, Congress has the authority to regulate even local, non-commercial activity, effectively restraining consenting adults from engaging in completely voluntary activity. The ACA itself orders citizens through an “individual mandate” to purchase health insurance—whether they want it or not. The Federal Election Campaign Act puts obscene restrictions on our right to assemble to petition elected officials for a redress of grievances, by limiting the amount we may contribute to political candidates and organizations that win our support. These examples barely manage to scratch the surface of the erosions to personal liberty the past century has wrought.

The Hobby Lobby decision continues that trend. To draw an analogy, suppose that the Supreme Court upheld a pornographer’s right to free speech, while denying that same protection to political protestors. Would such a decision be applauded as a victory for the more fundamental right to free speech? Absolutely not, because such a decision would both compromise and cheapen the very concept of an unalienable right to free speech by giving special groups the permission to enjoy that freedom, while denying it to others. The same is true here of the Supreme Court’s treatment of religious free exercise in the context of the right to personal liberty.

If anything is to be called unjust about Hobby Lobby’s being forced to pay for the birth control of female employees, it’s not that the company’s right to religious liberty was violated. Rather, it’s the more fundamental injustice of the ACA’s forcing unchosen terms onto a mutually agreed-upon employer-employee relationship, in violation of the personal liberty of consenting adults. The Court’s decision did nothing to affirm the right to this liberty. To think of the Hobby Lobby decision as a victory for your individual rights is thus to accept a pittance in exchange for your sovereignty.

By carving out a special exception to the ACA’s contraceptive mandates for religious freedom, the Supreme Court treats religious liberty like a stand-alone permission slip for favored groups with favored beliefs. Because of its derivative nature, religious freedom cannot stand alone in this manner. A leaf cannot remain suspended without the tree from which it stems. And to give religious freedom this kind of special status, without protecting the more fundamental rights to ideological and personal freedom that are its roots, is to undermine the entire concept of our right to liberty.

Thus, while the Supreme Court’s decision in Burwell v. Hobby Lobby may be viewed as a particularized victory for Hobby Lobby, it represents a broader defeat for the concept of our fundamental right to personal liberty. And battles should never be cheered for their place in a losing war.

Creative commons image by Flickr user Hitchster

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