Unlike most of my liberal friends, I am not outraged by the Supreme Court’s decision in Sebelius v. Hobby Lobby. I believe in religious freedom. I support the Religious Freedom Restoration Act. And I am even willing to acknowledge that corporations are run by actual people who have the right to exercise their religion.Furthermore, I agree with pretty much all of Shawn Griffiths’
arguments published on Monday. The court did not overturn Obamacare or rule that corporations were people. It merely upheld the RFRA standard that the state must accomplish its objectives in ways that burden religious beliefs as little as possible. Justice Alito argued — correctly I think — that the government had less religiously restrictive ways available to them to provide contraceptive care to women through the ACA.
In short, I don’t have any problem with the legal reasoning that the majority used in arriving at its decision in the Hobby Lobby case. But I think that they made a big mistake about the nature of facts.
As Andrew Gripp argued last week, Hobby Lobby based its religious objections to certain kinds of contraception on scientific claims that were, at best, extremely problematic. They did not argue that contraception itself violated their religious beliefs. Rather, they argued that certain kinds of contraception — such as Plan B, Ella, One-Step, and certain kinds of IUDs — cause abortion by destroying fertilized embryos. It was the company owner’s opposition to abortion, not contraception, that was at issue in this case.
The problem is that it is by no means certain that these contraceptive devices do what Hobby Lobby claims they do. It is a debatable proposition, of course, but Hobby Lobby was not required to debate it. The court simply accepted that the owners of Hobby Lobby had a “sincerely held belief” that required the state to make a religious accommodation.But here is the problem: the only kind of proposition that can be supported by a belief—sincerely held or otherwise—is a claim of value, such as “abortion is immoral.”
The owners of Hobby Lobby did make such a claim, and the Supreme Court ruled that it was entitled to respect under the Religious Freedom Restoration Act. So far, so good. I can live with this sort of accommodation.
But Hobby Lobby also made a claim of fact: that certain kinds of contraception caused abortions. And a religious belief — no matter how sincere — simply cannot be used to support a claim of fact. Only facts can do that, and Hobby Lobby was not required to meet even a minimal burden of proof on those facts.
By allowing the owners of Hobby Lobby to use a claim of “sincere religious belief” to support, however minimally, a claim of scientific fact, the court has opened a door that should probably have remained closed, since it doesn't lead anywhere worth visiting. It could conceivably pave the way for a whole host of value-supported fact claims about things like evolution, homosexuality, climate change, public education, and a whole lot more.
Can a business owner, for example, refuse to pay property taxes that might be used to teach evolution in a public school? Does a “sincere belief” in the false and satanic nature of evolution entitle one to refuse to support its teaching? That could actually become a real issue following the court’s logic today.
But more importantly, the Supreme Court just told us all that the factuality of facts can be connected (at least for legal purposes) to the sincerity of one’s belief about them. And with all due respect to the five intelligent men who used this assumption to reach their decision today, that’s just not how facts work.