Religion Snapshots: Reflections on the Hobby Lobby Affair, Part 2


Religion Snapshots is a feature with the Bulletin for the Study of Religion blog, where a number of contributors are asked to briefly comment on popular news items or pressing theoretical issues in the field, especially those topics relating to definitions, classification and method and theory in the study of religion more generally. See here for part one.

Dennis LoRusso: “Can a for-profit religion exercise religion?” This seems to be the question most vexing to critics of the recent SCOTUS decision in favor of Hobby Lobby. On the surface, how one answers this question seems to depend greatly on how one defines “religion.” If religion is a matter of individual conscience, then how can an incorporated for-profit organization exercise its conscience? Yet, if corporations are legal persons, then shouldn’t they, like individuals, be afforded the full protection of the First Amendment, including the free exercise of religion? After all, the law clearly recognizes the existence of organizations that are “religious.”

While I find it particularly encouraging to witness the general public openly discussing the instability of concepts like “religion,” I believe that the controversy more deeply rests on assumptions about a different question: what is personhood? Personhood is everywhere here, from beliefs about the personhood of the unborn and the rights of women to control their persons, to the legal personhood of corporations. Burwell v. Hobby Lobby was a case wholly obsessed with who (or what) counts as a person, and the Supreme Court’s majority opinion reveals the relationship between personhood and particular configurations of power.

The rhetoric of “religious liberty” merely serves as the authorizing discourse for establishing personhood, and therefore the relations of power. It is rather unremarkably to suggest that corporations possess first amendment rights, including the free exercise of religion, if they are considered legal persons under the law. The question, rather, is “who’s religion does a corporation express?” In this case, closely-held corporations exclusively reflect the religious beliefs of its owners (i.e. investors), rather than employees. This is no insignificant claim here. The legitimacy of corporations under US law rests on the legal separation that personhood establishes between investors and the organization. While owners reap the benefits of profitability, their legal liability begins and ends with their financial investment in the firm. Pragmatically, the legal system simply treats the corporation as its own, autonomous entity.

The Court, however, has ruled that the religious beliefs of these owners are inextricably bound to the corporation; the company’s “religion” identifies with that of the majority of stockholders. “Religious belief,” it seems, complicates this legal separation between investor and the corporate “person.” The corporate person becomes (as it perhaps always has been) a tool in the service of the interests of owners. While employees, customers, and suppliers serve as vital constituents of the business, they do not comprise this “personhood” and therefore do not hold the legitimate reigns of power in the eyes of SCOTUS.

Charles McCrary: There are many interesting angles from which to discuss this case, the rulings, and the reactions to it. Most of these have been taken up in various blogs and media outlets, including here at the Bulletin. My reactions to the case were similar to those of Winnifred Sullivan, which she wrote about at The Immanent Frame. (To be clear, this is because my thinking is influenced by her work, not by great minds thinking alike.) So, you should go read that. But, while we’re here, I’ll offer some very brief thoughts on one aspect of the case that I haven’t seen receive as much attention: the language in the Religious Freedom Restoration Act (RFRA) that the government “shall not substantially burden a person’s exercise of religion…” What work is substantially doing here?

As I read it—and I think this reading is supported by both Justice Alito’s opinion and Justice Ginsberg’s dissent in Hobby Lobby—the word “substantially” leads to a discussion of essentiality. In the Smith case (1990), for which the RFRA was intended as a sort of corrective, members of the Native American Church argued that consuming peyote was an essential part of their religious practice. To disallow peyote use would then, after RFRA, probably “substantially burden” their religious freedom. It would be like, say, disallowing Catholics under age 21 to drink of Eucharist wine. With Hobby Lobby, it might seem like a different case.

But is it? More importantly, how are justices to decide what’s essential to a religious practice and what isn’t? As long as the language of “substantial” in applicable, justices must make claims—as all of us do, however explicitly or implicitly, when deciding what to cover and not cover in a world religions survey course—about what’s really important in a religion.

And why is it that Ruth Bader Ginsburg doesn’t find it compelling that providing certain types of contraception could really be a substantial burden on one’s religious practice, but Samuel Alito finds that totally plausible?

Matt Sheedy: I find myself in agreement with Charlie McCrary’s endorsement of Winnifred Sullivan’s take on the Burwell v. Hobby Lobby case. In her piece, Sullivan speaks to liberal commentators in the US in her capacity as a scholar of religion, noting that while she too is troubled by the implications of this case, particularly as it relates to women’s reproductive rights, what distinguishes scholarship from advocacy is the ability to step back and offer a different and more critical lens on the conditions that give rise to such events, including the ways that “Religion” (with a big ‘R’ in her phraseology) and the concomitant notion of “religious freedom” function discursively in the public sphere. As she puts it:

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.

Rather than get trapped in this standard “cultural-wars framing,” Sullivan asks liberal opponents of the decision to consider why it seems obvious (and even natural) to many conservatives that Hobby Lobby is in fact engaging in an “exercise of religion” as it is defined under the terms of US law? One answer to this question is that they (and we) still hold a rather simplistic and dated understanding of “religion,” (e.g., see her comments on justice Ginsburg’s remarks) and one that relies, I would add, upon choosing sides in the endless back and forth between various groups as to what constitutes “true” religion.

Notwithstanding Sullivan’s rather sparse (and problematic, to my mind) gloss of what all this means for corporate personhood, a point addressed by Dennis LoRusso (above), Karen de Vries (below) and Carl Stoneham in part one of this feature, her argument stands as a useful example of what can and should distinguish scholarship from mere advocacy: by placing “religious phenomena” in historical and cultural contexts; by asking how they function differently (e.g., within different countries and cultures); and by discerning what kind of work they do for those who use them?

As for the more difficult question that Carl Stoneham raises as to whether or not scholars should also weigh-in positively or negatively on one or the other side (and it’s worth noting that Sullivan does end her piece with some reflections on questions of judgment and evaluation), it would seem that doing so should not be our prime mover, but that we should first look toward raising different, more complex sets of questions than those commonly found in the public domain in order to better conceptualize our field of study and then, perhaps, offer suggestions on how to help move the public conversation in a better (read: more analytically engaged) direction.

Karen de Vries:  My colleagues have offered a number of important and interesting angles on the Supreme Court’s Hobby Lobby decision, including: consequences of for-profit corporations having recognized religions beliefs; related trends in scholarship on American religion; references to definitions and disputes about religion and personhood; and questions about how we scholars might understand the lay of the discursive terrain and position ourselves in it. I share these questions and concerns as well as the appreciation for Winnifred F. Sullivan’s scholarship regarding religion and law in the United States. 

In addition to these angles, my recurring response to this whole debacle has been: we wouldn’t be in this position where the Supreme Court determines if a closely held corporation holds a sincerely held beliefs that makes self-determination regarding contraception for female employees more difficult if Americans had gone with a single payer option from the get-go. We are, as ever, worshipers of money and the corporations built to produce and reproduce it. Of course, they are all still primarily run by men. Patriarchal authority remains the rule of the day.

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