American religious liberty is in a state of flux and uncertainty. The controversy surrounding Burwell v. Hobby Lobby Stores, Inc. is both a cause and a symptom of this condition. It suggests a state of deep contestation around one of the key markers of the church-state settlement: the accommodation of religion.
The problem is social and political, not judicial, although judges are obviously influenced by those larger forces. Courts are rarely at the forefront of significant social change. Judges are constrained by their function: to decide specific cases, based primarily on a finite (if malleable) set of materials such as prior precedents and statutes. Hobby Lobby itself turned not on the vagaries of the Religion Clauses, but on the directions laid down by Congress in the Religious Freedom Restoration Act of 1993 (RFRA). The Court is routinely criticized for the incoherence of its Religion Clause jurisprudence. Inevitably, there are doctrinal disagreements among judges on these issues. On the whole, however, the judicial treatment of the American church-state settlement has been relatively stable.
Conditions are much more fraught outside the courts. In public discussion and in the scholarly community, the very notion of religious liberty — its terms and its value — has become an increasingly contested subject. In the space of a few short years, the basic terms of the American church-state settlement have gone, in Professor Lawrence Lessig’s useful terms, from being “taken for granted” to being “up for grabs.” Once a fairly “uncontested” issue that remained in the “background of public attention,” religious accommodation has become a “contested” issue occupying the forefront of public debate. The change has been sudden, remarkable, and unsettling. The Court’s decision in Hobby Lobby will influence the debate outside the courts. But the decision will not resolve that debate. If anything, it seems more likely to heighten and prolong the public tension than to calm it.
Unsurprisingly, given the polarized nature of the larger debate over religious accommodation, most discussions of Hobby Lobby and the contraception mandate have been equally polarized. On one side of the divide, some saw the contraception mandate as “trampling” or “assault[ing]” religious liberty. On the other side were those who warned that a win for Hobby Lobby threatened our local and national civil rights laws, and perhaps the rule of law itself. After the ruling, most of the immediate reaction to the decision was similarly divided. The polarizing nature of the issue, and of the Court’s decision, was both reflected in and encouraged by Justice Ginsburg’s stinging dissent.
As always during times of revolutionary (or reactionary) passion, those who are more concerned with analyzing the conflict than with participating in it may find themselves squeezed from both directions. When an issue moves to the foreground of social contestation, one is expected to choose sides. Nevertheless, some writers have taken an interest in evaluating and sometimes lamenting the current struggle, not just fighting it.
This Comment falls into the analytical category. I have my own views on the merits of Hobby Lobby. But it is the controversy over the contraception-mandate litigation, not the case itself, that takes center stage here. I focus less on the doctrinal questions the Court dealt with or left unanswered, and more on the legal and social factors that turned a statutory case into the legal and political blockbuster of the Term.
More specifically, in thinking about the broader social context that made Hobby Lobby so prominent and the debate over it so inflamed, it is the moment that matters. We are in the middle of a process of social contestation on some key questions: between certain issues being taken for granted in one direction and their being equally taken for granted in the other direction. It is difficult, if not impossible, to stand outside such moments. But there is some value in focusing, at a slight remove, on the fact of the moment itself.
A great deal of recent constitutional scholarship has examined the relationship between social and legal change, and between social movements and courts. The Hobby Lobby case and its ancillary issues offer an excellent opportunity to consider these relationships. More specifically, this occasion allows us to scrutinize one particular stage in the life cycle of social and legal change: the moment at which an issue is at its most contested and foregrounded. It is unsurprising that courts will speak up at these moments, particularly if Congress has left them little leeway to avoid or postpone the question. In some ways, however, these critical moments may also be the ones in which judicial action is likely to be the least fruitful. These are surely fertile times for activists and advocates. But perhaps there is good reason at such moments to hear from ironists and tragedians as well.
The heated nature of our current debate over the contraception mandate and related issues may prove short-lived. It may be a mere byproduct of the energy expended in a period of dramatic social transformation. The degree of controversy occasioned by Hobby Lobby would have been unlikely thirty years ago, given the state of social consensus at that time. It may prove equally unthinkable thirty years from now. In the meantime, the Hobby Lobby moment gives us a chance to take stock of the nature and effects of the social contestation we are experiencing, and of the rapid changes and reversals of view that have thrown one of the central aspects of the American church-state settlement into question.
Part I of this Comment summarizes the Hobby Lobby decision. In my view, the decision itself is not the primary source of the controversy. In any event, both the majority and dissenting opinions are thorough and lucid, although like all opinions they leave questions in their wake. My discussion in this Part is thus quite brief.
Part II discusses the legal and social sources of the controversy. Legally, it discusses a key element of the American church-state consensus as it existed until recently: the accommodation of religion. That consensus is aptly summed up by Professor Andrew Koppelman: Religion is “a good thing,” and “[a]ccommodation of religion as such is permissible.” We may debate whether courts or legislatures should be responsible for it, but it is generally agreed “that someone should make such accommodations.” Until recently, there was widespread approval for religious accommodation. That consensus found strong expression in RFRA, which passed just two decades ago with the overwhelming support of Congress. There have been dissenters from this consensus. On the whole, however, it enjoyed “taken for granted” status. In Lessig’s terms, disagreement over religious accommodations was a background issue, not a foreground issue.
The past few years have witnessed a significant weakening of this consensus. Contestation over religious accommodations has moved rapidly from the background to the foreground. Accommodations by anyone — courts or legislatures — have been called into question, including by those who acknowledge that until recently those accommodations would have been uncontroversial. Whether religion is “a good thing” — whether it ought to enjoy any kind of unique status, and whether that status should find meaningful constitutional protection — has itself come up for grabs.
This legal contestation has been accompanied by — indeed, may be driven by — significant social dissensus. Although Hobby Lobby itself involves a controversial social issue — the status of women’s reproductive rights — much of the reason for the shift in views on accommodation involves another contested field in the American culture wars: the status of gay rights and same-sex marriage. The cause of marriage equality, which seems to be a fait accompli awaiting final confirmation from the Court, has come increasingly into conflict with the views of religious objectors to same-sex marriage. Same-sex marriage and its consequences have become a central, foregrounded, socially contested issue. The church-state consensus, drawn into the gravitational pull of this contest, has been put up for grabs as a result. Part III offers some thoughts about the lessons and implications of this debate, both for religious liberty and for the general culture wars that have featured so heavily in the Hobby Lobby controversy.
A brief caveat is in order. I offer a particular framework for thinking about the Hobby Lobby moment in this Comment. It focuses in particular on LGBT rights and changes in the marketplace as drivers of the controversy surrounding the Court’s ruling. I believe that those factors have been major influences on Hobby Lobby as a social and legal moment and have contributed significantly to changes in current views on religious accommodations. But other possible frameworks, and other factors, exist. One of those, obviously, is the status of reproductive rights and women’s access to contraceptive services. I argue in this Comment that despite the emphasis on that subject in Hobby Lobby, and especially in Justice Ginsburg’s dissent, other factors were at work in contributing to the degree of public attention and disagreement that accompanied this case. This focus is not intended to deny or disparage the importance of reproductive rights. It is simply intended to direct attention to other factors, less apparent on the face of the opinion, that are nonetheless essential elements of the Hobby Lobby moment.