Today’s decision hot off the Supreme Court of the United States’s press presents a compelling case for why the social science of religion should be considered one of the core issues in today’s public academies.
There are plenty of avenues to find out about today’s decision regarding Hobby Lobby Stores and Conestoga Wood Specialties corporation, not least of which is reading the decision itself. In a 5-4 decision delivered by Justice Alito, SCOTUS has ruled that the 1993 Religious Freedom Restoration Act (RFRA) sets up a framework that holds that in America, even laws that seem ‘”neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise’ (RFRA, S. 2(a)(2)). As Alito tells the story, RFRA was an attempt to legislatively contest Justice Scalia’s majority opinion in Employment Division v. Smith, a 1990 case where SCOTUS ruled that the free exercise of religion doesn’t mean that you can break criminal law by, say, ingesting outlawed drugs like peyote. Alito argues that Congress didn’t like Scalia’s argument because in previous cases like Sherbert v. Verner and Wisconsin v. Yoder, SCOTUS had established a ‘a balancing test’ for the free exercise of religion ‘that took into account whether the challenged action imposed a substantial burden on the practice, and if it did, whether it was needed to serve a compelling government interest’ (Alito, opinion, Burwell v. Hobby Lobby Stores, p. 4). Because Smith took away the ‘balancing act’ and argued that general law trumped free exercise, RFRA sought to restore the Sherbert test.
The case really revolves, then, around an interpretation of RFRA. As Justice Ginsburg puts it in her ‘blistering dissent‘ (to employ Mother Jones‘s colourful language – note the ‘u,’ as I am currently in Vancouver),
Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden arises from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling government interest.” (Ginsburg, dissent, Burwell v. Hobby Lobby Stores, p. 8).
In other words, this case isn’t so much about the First Amendment’s Free Exercise Clause as it is about the legal frameworks about how the free exercise clause should be interpreted.
The ‘general law’ that Hobby Lobby and Conestoga contest is the Health and Human Services’s (HHS) interpretation of the Affordable Care Act‘s (ACA, or in colloquy, Obamacare) ‘preventive services’ clause. HHS says that ‘preventive services’ include some 20 forms of birth control. Because four of those 20 forms of birth control have a mechanism by which a fertilized egg would not be able to attach itself to the uterus, Hobby Lobby and Conestoga argue that those four contraceptive devices are ‘abortifacient’; unlike Roman Catholics who under Humanae Vitae would disapprove of all forms of birth control except for natural family planning, these evangelical family-owned corporations don’t have a problem with the other sixteen forms of contraception. This is why this narrow ruling does not quite apply to the Catholic cases, such as the Little Sisters of the Poor’s, so we will expect to hear more on that number in the future.
Instead, what interests me is this telling quote from Justice Ginsburg’s dissent: ‘Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit the bill.’ (Note well the irony here, by the way. I’m not interested in the ‘corporations are people’ argument, but I’m quoting from the very part of Ginsburg’s dissent that Breyer and Kagan reject.)
Here’s where the real rub lies. It’s in precisely how the practice of religion relates to the American public sphere and whether those practices should be protected as a matter of public good.
In Ginsburg’s world, religious communities are private institutions that exist to put their theological convictions in practice within their own religious realm. When they engage non-adherents, say, by hiring people who do not share their religious convictions, they cannot claim to be exercising religion because they’ve gone out of their religious sphere. But in Alito’s world, all exercise of religion is an exercise of religion, regardless of whether it’s in a private religious sphere or not.
This is a sociological dispute. It gets to the heart of what Alexis de Tocqueville wrote about in Democracy in America where he observed that religious organizations in America are voluntary associations in which theological convictions hold sway but have no effect on public discourse. In this sense, Ginsburg’s dissent is closer to what de Tocqueville observed than Alito’s.
But the point is that the real contest in this case is over how religious communities actually work as part of the American polity. This has several implications for how the social science of religion should actually be practiced as a matter of public interest. In particular, it shows that what we do in the academy as social scientists is not just about writing up cute little congregational ethnographies that only matter to the communities that we have studied. Our understanding of congregational polities affect legal policy, and in turn, those policies in turn come to affect how religious polities are governed, which means that there is always a legal dimension to what we study. There’s no way to get around how law and the social sciences of religion are intertwined. It means that when we write our books and articles on the social sciences of religion, we need to reciprocate what our legal colleagues have done for us: as they have cited us, so must we cite them, their policies, and their cases.
And this comes back to my initial contention. Hailed as one of the most anticipated cases of the year, Burwell v. Hobby Lobby Stores is fundamentally at heart a matter of how the Supreme Court justices understand the social science of religion. If indeed the social sciences of religion are such a matter of public interest, it should follow that public universities ought to be devoting their core curriculum and funding to the social scientific study of religion, which in turn finally means that for all the talk of how secular universities should be secular, religion has always really been the heart of the matter.
CORRECTION: The correct number of contraceptives required by the HHS Mandate is 20, not 16. 4 were under contestation.