Kurt Lash on "Religious Sincerity and the Hobby Lobby Investments"

My friend, Prof. Kurt Lash, shared with me (and gave me permission to post) these thoughts:

Although public attention has turned elsewhere, the Supreme Court continues to mull over the question of Hobby Lobby’s religious objection to the contraceptive mandate in the Affordable Care Act. Perhaps with an eye to influencing the Court’s deliberations, recently a number of Hobby Lobby’s critics have pointed to the company’s 401(k) investment program as calling into question the sincerity of their religious objection.  Among the many stocks included in mutual funds made available to Hobby Lobby employees are those of companies manufacturing contraception products.  To Hobby Lobby’s critics, this not only renders the owners hypocrites, it also undermines their claim that the contraception mandate burdens a sincerely held belief.

 It’s a specious argument, one effectively rebutted by others. In brief, it is the manager of the 401(k) program, not the owners of Hobby Lobby, who select the program’s mutual funds--funds that invest in the stock of hundreds (or thousands) of individual companies.  And it is the employees, not the employers, who choose which fund to invest in.  Even the critics concede that it is not likely Hobby Lobby’s owners knew about the activities of every company in every mutual fund offered as a choice to their employees.  There is nothing in this story, in other words, that calls into question the sincerity of Hobby Lobby’s claim.

 But what about going forward?  If the owners do not take affirmative steps to deny employee access to mutual funds that (sometimes) include companies that manufacture contraceptives, doesn’t this call into question the sincerity of their refusal to authorize contraception coverage as mandated by the ACA?  The question involves drawing a line between religiously permitted and forbidden activity, and determining who gets to draw that line.  Should Congress, in passing legislation like the Religious Freedom Restoration Act, protect the beliefs of religious claimants who may identify moral distinctions that their secular fellow-citizens would not?  And should they do so if the result arguably shifts a burden onto third parties? 

The first time we faced this issue as a country, the answer was emphatically yes.  During the Civil War, Congress debated whether to grant an exemption from the military draft for religious objectors.  The exemption would relieve objectors from service but require a payment of $300 “to be applied to the benefit of the sick and wounded soldiers”—a payment religious objectors had signaled Congress they would accept.  Opponents of the exemption argued that the objectors’ willingness to pay the fee called into question the sincerity of their objection to military service.  Although the $300 would be earmarked for the “sick and wounded,” money was fungible and the payment would free up funds to secure a replacement or to purchase weapons.  

The reply, which carried the day, was that religious exemptions must be viewed from the perspective of the individual’s religious conscience.  According to Sen. Doolittle: 

Gentlemen say [providing that the money go to the use of hospitals] makes no difference; they are just as much supporting the war in this way as if they paid the money directly to procure a substitute and place him in the field with arms in his hands. Perhaps you think so; perhaps I think so; but they do not; they draw a distinction; and in legislation we must regard as facts the prejudices and the religious convictions of a people.  

Nor was the issue one of mere political expediency. According to Thaddeus Stevens, “independent of policy ... justice requires [exemption of the religiously scrupulous.]”  In the end, not only was the amendment modified to include non-Christian denominations that conscientiously opposed bearing arms, but the discretionary wording “may” was replaced with “shall” to make the exemption mandatory. 

There are several lessons here that are important to the current debate.  First of all, the religious exemption from military service during the Civil War was the first true national religious exemption.  The exemption was limited to only religious-based objections and granting the exemption had the effect of making it more likely that a non-believer would be forced to serve and risk life and limb.  Nor did it matter that the same objectors were willing to pay a fee that could be viewed as directly advancing the military effort they refused to join.  If the purpose of the exemption was to protect the religious conscience, the moral lines drawn by that conscience were to be respected as well. 

Should the Supreme Court grant Hobby Lobby an exemption under the Religious Freedom Restoration Act, its decision will echo an earlier and far more serious decision to grant a legislative exemption during a time of war.  Then as now, religious adherents drew moral lines in the sand beyond which they could not go.  The country has long understood that respecting those lines is an essential part of respecting religious freedom.

 Kurt T. Lash

 [Note: for citations to the historical material cited above, see Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. L. Rev. 1106 (1994).]