Thursday, December 18, 2014

Hobby Lobby and the question for religious freedom

Andrew Koppelman

Winnifred Fallers Sullivan is arguably the premier scholar of law and religion in the United States. She brings to the field of law an unparalleled degree of sophistication and historical and anthropological knowledge. When she says that all religious freedom laws are rotten at the core, that claim has to be taken seriously.

The core of the problem, she writes, is the distorting effect of the demand that the state distinguish the religious from the nonreligious. The religious life of most Americans, “incredibly varied, creative, and entrepreneurial,” has become so disconnected from the law’s understanding of religion that the law should abandon the use of the category, “religion.”

As Sullivan notes, the Religious Freedom Restoration Act (RFRA)—the basis of the Burwell v. Hobby Lobby suit—was a reaction to the “notorious” Employment Division v. Smith decision, which limited the scope of the free exercise clause of the First Amendment. There are reasons for the notoriety and Smith was widely condemned. RFRA passed by overwhelming margins because most Americans thought that the tradition of specifically religious accommodation was valuable. Since Colonial times, Quakers have been exempted from oath-taking and military service. Catholics were permitted to use sacramental wine during Prohibition.

Our choices are clear: either we sometimes accommodate, or we never accommodate. The argument for the latter option relies precisely on the religious heterogeneity that Sullivan invokes.

I elaborate the argument in a piece just posted on The Immanent Frame, here.

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