Writing in the Library of Law and Liberty, Prof. Hadley Arkes revisits the Hobby Lobby case, whose jurisprudence has given rise to “Post-Hobby Lobby Illusions.” These “illusions” are stories that our friends are willing to tell themselves as they seek to elevate into a reigning doctrine groundless slogans that have recruited their sentiments.
“My own argument is that the rationale for the case’s holding produces a jurisprudence that cannot give a morally coherent account of itself. That jurisprudence claims to protect religion while installing premises that denigrate religion and promise to be corrosive for our law.”
“The government could have offered tax incentives, or it could have simply given out [contraceptives and abortifacients] and paid for them with public monies. But in order to raise those public funds the government would have had to take on the constitutional discipline of justifying to the public the taxes it was levying to raise this money. How much simpler it is to place, on these private businesses, these private families, the burden of bearing what the government regards as a public obligation. What becomes engaged here then are constitutional principles that have been bound up with the very premises of a regime of law. Those principles were quite sufficient to carry this case—and carry it, may I say, with or without RFRA.”
“[Ryan Anderson] writes in this vein, ‘The Greens relied not only on their belief that life begins at conception but also on their belief that it is wrong to do anything that might kill that life.’ But my friends have backed themselves into a logical trap here. We are asked to give a heightened respect to the ‘belief’ held by the Greens because that belief, about abortion, happens to be true. In that case, is it not evident that the claim of respect for this belief rests on the underlying reasons and evidence that establish its truth? Well in that event, should our argument not come to focus in turn on the truth of the matter? Should it not be the substance of the issue that we are testing for truth, not merely the question of whether someone happens to believe it?”
“[As a result of Hobby Lobby, we now have] a jurisprudence that will not survive one more Democratic appointee to the Court. My friends may wish to consider that, in gaining the outcome in this way, they have put in place moral premises that cannot supply a coherent defense of our freedom, including our religious freedom. But in going forward, in invoking Hobby Lobby, we are free still to make the argument on better, more reasonable grounds.”
“I make an earnest plea then to those who have joined in working for the outcome in the Hobby Lobby case. We do not show ingratitude for that outcome as we register a deep concern about the reasoning, the grounds of principle, on which that outcome was delivered to us. There should be nothing here that friends should be unwilling to talk about, and none of us would be diminished if we found that there were reasons even better, more compelling, than the reasons that once summoned us.”
Read the whole piece here.