ETA (5:45pm, 7/28/14): Edited to clarify the claimed religious affiliation of Hobby Lobby.
So in the wake of the Supreme Court’s rather sweeping decision in favor of Hobby Lobby last week, there have been a range of responses, but perhaps the strangest I’ve come across comes from The Immanent Frame on “The impossibility of religious freedom.”
There’s a lot going on in the discussion, and the title is obviously meant to be controversial, but one of the major points is the idea that the religion intended to be protected in the Constitution means something different than just ‘religion’ in the colloquial sense:
“Human history supports the idea that religion, small “r” religion, is a nearly ubiquitous and perhaps necessary part of human culture. Big “R” Religion, on the other hand, the Religion that is protected in constitutions and human rights law under liberal political theory, is not. Big “R” Religion is a modern invention, an invention designed to separate good religion from bad religion, orthodoxy from heresy—an invention whose legal and political use has arguably reached the end of its useful life.”
While it’s certainly the case that the constitutional conception of “religion” was shaped by early modern ideas of liberalism, just like the rest of the constitution, the idea that orthodoxy and heresy are modern inventions makes the Late Antiquarian in me cringe. If nothing else, “orthodoxy” is a Greek word! Christianity has been debating with is orthodox and what is heterdox since the New Testament.
I think it’s a perfectly useful conversation to want to discuss “what is the religious phenomenology at work in these cases and how does that religious phenomenology reflect changes to religion in the U.S.,” but I’m less enthusiastic to hear that, “it is the business of religious studies scholars to explain these phenomena, not to decry them.” I’m not sure when we decided on that rule, but I for one am definitely not going to follow it, any more than I’d expect an environmental scientist not to have a stance on global climate change or a sociologist not to have a stance on ending poverty. We study things we care about, and are invested in, and pretending otherwise does a disservice both to us and to the communities we work with, especially in cases where there are major, potentially deeply problematic shifts underpinning these decisions.
In this case, that big shift is that the Supreme Court just decided a company could have a religion, something the article itself sort of slides over – it somehow goes from the standard, Harold Bloom-style discussion of the American Religion as individualized, “radically disestablished free religion, defined not by bishops and church councils, but by themselves—ordinary Americans reading their Bibles, picking and choosing from among a wide array of religious practices,” to religion as practiced by a company. Not even a company that’s producing something religious. It’s not as though Hobby Lobby is a Bible publishing group or a kosher deli – it’s an entirely secular business producing entirely secular goods while claiming that the company as a whole – on some level separate from its staff, who obviously have different religious views if they want to be able to choose to use birth control – is practicing a religion, and for that reason, needs protection to continue in its religion.
I’ve touched on before the idea that there’s not really an agreed definition of “a religion” even among scholars, but religion as practiced by a company is certainly an innovation worthy of at least a few lines. In this particular case, Hobby Lobby claims to be Pentecostal, which makes the ruling more confusing, as Pentecostals (or the Assembly of God, as the churches themselves are often called), like most Protestant Revivalist churches, has no authoritative hierarchy which passes laws, which could ban the use of birth control. Use of birth control is thus not strictly forbidden, and practice varies from church to church.
There are communities that the SCOTUS decision does address directly, however, in particular Roman Catholicism, which can be understood to ban the use of birth control by all of its members. Moreover, for myself, what I find really unsettling about the Hobby Lobby decision is that, from the point of view of religious debate, it’s not the federal government allowing religions to make decisions for themselves. It’s the federal government picking a side on a religious debate and then forcing that decision on the entire religion. Similarly, despite the individualist view of modern religion presented in the article, the side the government picked is exactly the side “defined by bishops and church councils.” Within Roman Catholicism, the church hierarchy has declared the use of birth control to be unacceptable (remember that word “use,” as it will be important later). But a significant percentage of Catholics use birth control (the exact number is up for debate, but probably more than half is a safe bet). So the SCOTUS decision would potentially prevent Catholic-identified employees of Hobby Lobby from being able to afford birth control.
This is not a case of protecting religious practice. It’s writing laws to prevent Catholics for being able to do what they were already doing, while all the while identifying as Catholics. It’s not the federal government’s place to do that, and honestly, as someone who has spent most of the last decade working with religious communities, I think religious people should be freaked out that it’s happening. I appreciate that not being able to manage your flock is frustrating, but turning to the government to do it for you? There’s never been an example in history where that’s ended well.
Mostly because of that pesky word “use.” Religious law cares about action and motive, so coercion becomes a really big problem. Again to use Roman Catholics as the model, there’s a reason why confession must be undertaken “in a spirit of contrition.” The person confessing has to feel guilty for what they’ve done and be willingly seeking divine forgiveness. But if that person would have happily used birth control (a sin), but couldn’t afford it because their company wouldn’t pay for it, have they sinned? They didn’t do anything, but they probably would have given different circumstances. That’s not a moral choice, that’s a lack of opportunity.
Thus, from the point of view of religious law, using the federal government to prevent people from having access to birth control in order to protect a company doesn’t accomplish anything. The company can’t have sinned, because a company doesn’t have a soul. It’s also never been baptised, gone through catechism, been given the Eucharist, it won’t get married, and it can’t confess. The people in the company are being forcibly prevented from doing something that some of them might consider a sin, but that also doesn’t accomplish anything because, for the ones who do consider it a sin, they’re not making the choice themselves, so there’s no personal morality in it, and for the ones who don’t, it’s irrelevant.
And yes, I’m aware that this whole argument is a little hyperbolic. The court didn’t really mean to assign a religion to a company – the claim in the decision was that Hobby Lobby was a “closely related” company, a title that allows for the exchange of certain rights between a company and its owner. But again, if this is the case, and we’re really protecting the religious rights of the owner of Hobby Lobby, then we’ve just protected his right to the religious practice of dictating how his employees should spend their wages, and denying those wages if they spend them on anything he considers a sin. And as far as I’m aware, no religion has that as a tenant,and again, certainly doesn’t apply to Pentecostalism. So again, we’ve made a legal ruling about religion in order to protect a religious practice that doesn’t exist and that doesn’t need protecting.
This all comes back around to why people who work in religious studies need to be engaging directly with what’s happening with religion in the public sphere, because without people willing to discuss the theology underpinning these decisions, we’re left with a scenario where “it’s my religion!” becomes a get-out-of-jail-free card. If we’re spending taxpayer dollars on writing laws about religion, then we need to be willing to ask people about their religion and expect them to supply evidence about their traditions and practice, in exactly the same way we’d expect for any other kind of court case.
Or if not, I’m going to start claiming I can’t come into work on Fridays because my office computer is Muslim. I’m perfectly happy to enter it into a religious debate with Hobby Lobby as evidence.