The James Wilson Foundation on Natural Rights and the American Founding

“Hobby Lobby at the Court, Today” —Prof. Hadley Arkes in The Catholic Thing

by James Wilson Institute on March 25, 2014

Writing in The Catholic Thing, Prof. Hadley Arkes reflects on the cases of Hobby Lobby and Conestoga Wood as tests of religious liberty when it takes the corporate form.

Some excerpts:

“If nothing else, a business that closes on the Sabbath or offers kosher food would reveal that character. It may be an ebbing of confidence that accounts for why the opponents of the religious have been drawn with such conviction to an argument that would be as inverted as it is implausible: namely, that the Greens and Hahns, in refusing to fund abortifacients and contraceptives, are “imposing their religious views on their employees.” In this upside down view, the religious owners become the oppressors as they object to being made accomplices in acts they regard as deeply wrong.”

“But it used to be plain to ordinary folks, and especially to lawyers, that there was no coercion here. Lawyers used to understand that, in a liberal order, there was a sharp distinction between the public and the private. The public authority knew clear limits because it respected the domain of privacy: private businesses, private clubs, private colleges had a presumptive authority to order their own affairs according to their own, private criteria.”

“Those private entities could be not directed to illegitimate ends – we couldn’t have Fagin’s school of pickpocketry, and a private family that rented its children for pornography may lose custody of those children in the law. It was clearer to the people years ago that the employees of the Greens and Hahns were facing no coercion, no “imposition” of religious orthodoxy, for they were not compelled by law to work for these firms. They were free to leave at any time.”

“Once again, the argument was made that religious views were being imposed. But the estimable Richard Epstein, in his new book, The Classical Liberal Constitution, has made anew the elementary point that no employer ‘can tell workers what to do. . .so long as they have the right to quit their jobs.’ Epstein favors accommodations with the religious in private employment, but his argument would point out that so many cases, involving claims of religious coercion, would simply disappear if the law returned to the axioms of a liberal order in respecting spheres of private right.  But we are simply reminded here – on the day of Hobby Lobby – that the religious may find the stronger defense of their freedom in the principles of constitutionalism, which protect us all.”

Read the whole piece here


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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790