At the end of its current session, probably in June, the United States Supreme Court will hand down rulings on a case coded by many as a “religious freedom” issue. Religious America, or, if you prefer, Secular America, through its media and popular expressions, recognizes decisions on this front to be tense, controversial, and unsatisfying. Most informed observers expect the vote to be either 5-4 or 4-5, so polarized are the two wings of the Court, with Justice Anthony Kennedy likely to provide the tilting vote.
Close though the vote is expected to be, it will have profound and lasting consequences. There is no need to detail the story of what the two linked cases are about. Hobby Lobby, a huge arts-and-crafts chain, is headed and run by a family of devout evangelicals who state that they are trying to follow biblical standards in their company. The issue, like so many others that get swept into the category called “Culture Wars,” has to do with sex-and-biology controversies, as they have been sharpened by friends and foes of the Affordable Care Act.
The evangelicals at Hobby Lobby and some Mennonites, who own the other contesting firm, Conestoga Wood Specialties, refuse to participate in health insurance programs which include support for “birth control” approaches including pills or I.U.D.s, which, these critics argue, cause abortions. While scientists and partisans argue whether or not “abortion” is an appropriate definition for what these products actually do, public involvement tends to be less scientific than it is religio-political.
While it is easy to leap into the controversy and accuse this or that party of bad faith, it is also important to realize that, beyond the clouds of dust scuffed up in such cases, there are genuine concerns. Whatever the Court decides, consciences on both sides can be legitimately stirred, and consequences of the decision are enormous.
Can a company “exercise religion,” to paraphrase a concern of the First Amendment to the U.S. Constitution? Justice Sonia Sotomayor asked this during court questioning on March 25. “How do we determine when a corporation has that belief?” “What about the rights of employees who do not share that belief?
Those who boldly champion religious freedom are divided over these issues. Anti-abortion and anti-birth-control Evangelicals and Mennonites, whether in personal life or in for-profit corporations, are not pioneers and not alone in having their consciences and religious convictions challenged by government policies. Historians of the courts recognize that such courts often cannot assure that all believers in all religious communities and causes can have all their freedoms respected. They can’t all “win.”
In the questioning on March 25, one set of justices, foreseeing great complexities, envisioned parallels in battles over blood transfusions, vaccinations, psychiatric care, mandatory autopsies, etc. The Wall Street Journal (March 26) called these “a parade of dubious hypotheticals.” Paul Clement, attorney for the companies, said that there was no need to haul out this “parade of horribles,” (New York Times, March 26) and, in effect, said, “not to worry.” Others observe that many claims of many religious groups form a parade of horribles.
Where will all this lead? Many will leave all such questions as questions, while others will parade with banners on one side or the other, assuming that their parading will help them “win.”
Tribune staff and wire reports. “Supreme Court appears ready to reject Obamacare birth control mandate.” The Chicago Tribune, March 25, 2014.
Liptak, Adam. “Justices Seem Open to Religious Claims by Companies.” The New York Times, March 25, 2014, Politics.
Bravin, Jess. “Supreme Court Debates Contraception Requirement.” The Wall Street Journal, March 25, 2014, Politics and Policy.
“ObamaCare v. Religious Liberty.” The Wall Street Journal, March 25, 2014, Review & Outlook.
George, Robert P. and Hamza Yusuf. “Religious Exemptions Are Vital for Religious Liberty.” The Wall Street Journal, March 23, 2014, Opinion.
Jones, Sarah. “Belief And Birth Control: Faith Rally Highlighted Opposition To Hobby Lobby’s Anti-Contraception Views.” Americans United for Separation of Church and State, March 26, 2014, Wall of Separation.
Hurley, Lawrence. “Supreme Court signals support for corporate religious claims.”Reuters, March 25, 2014, US Health.
Image Credit: Steve Pettaway / Wikimedia Commons
Author, Martin E. Marty, is the Fairfax M. Cone Distinguished Service Professor Emeritus of the History of Modern Christianity at the University of Chicago Divinity School. His biography, publications, and contact information can be found at www.memarty.com.