Hobby Lobby Has Won, But Have We?
Hobby Lobby has won. The big box craft store’s lawsuit challenging the contraceptive mandate regulation issued by the Department of Health and Human Services in its implementation of Obamacare had become seen as high-stakes test case determining the future balance between the religious liberty of conservative Christians and the mandates of sexual modernity. When the case was first heard back in March, Patrick Deneen weighed in here at TAC with a decidedly unorthodox argument. To Deneen, Christians relying on a big box retailer to represent them against a secular leviathan signaled “the culminating absurdity of what Polanyi called the ‘utopia’ of our modern economic disembedding”:
The dominant narrative—religious liberty against state-mandated contraception—altogether ignores the economic nature of the case, and the deeper connections between the economy in which Hobby Lobby successfully and eagerly engages and a society that embraces contraception, abortion, sterilization, and, altogether, infertility. Largely ignored is the fact Hobby Lobby is a significant player in a global economy that has separated markets from morality. Even as it is a Christian-themed brand, it operates in a decisively “secular” economic world. …
Hobby Lobby—like every chain store of its kind—participates in an economy that is no longer “religious” or even “moral.” That is, it participates in an economy that arose based on the rejection of the subordination of markets embedded within, and subject to, social and moral structures. This “Great Transformation” was detailed and described with great acuity by Karl Polanyi in his masterful 1944 book of that title. … As he succinctly described this “transformation,” previous economic arrangements in which markets were “embedded” within moral and social structures, practices, and customs were replaced by ones in which markets were liberated from those contexts, and shorn of controlling moral and religious norms and ends. …
How delicious he would doubtless find the irony of a “religious corporation” seeking to push back against the State’s understanding of humans as radically autonomous, individuated, biologically sterile, and even hostile to their offspring. For that “religious corporation” operates in an economic system in which it has been wholly disembedded from a pervasive moral and religious context. Its “religion” is no less individuated and “disembedded” than the conception of the self being advanced by the State. …
I hope Hobby Lobby wins its case. But we should not deceive ourselves for a minute that what we are seeing is the contestation between a religious corporation and a secular State. We are seeing, rather, the culminating absurdity of what Polanyi called the “utopia” of our modern economic disembedding—the absurdity of a chain store representing the voice of religion in the defense of life amid an economy and polity that values turning people and nature into things. Our entire economy is an education in how to be “pro-choice.” What it most certainly is not in any way, shape or form, is about helping us to understand our true condition as embedded human beings.
Scott Galupo responded to distinguish his position as “a counterweight to the despair of both moral traditionalists like Deneen and Dreher and market purists-slash-declinists like Kevin Williamson.” On the Hobby Lobby case in particular, he invoked Yuval Levin and Garry Wills to contrast the Obama administration’s drive from a more appropriately modest accommodation:
Here, Levin calls to mind Garry Wills’s distinction between the progressive-liberal “order of justice” and the “order of convenience.” To sum up a complex essay, Wills believed it should not be the aim of the state to dispense “raw justice” (Chesterton’s phrase), but rather to facilitate convenience (in the John Calhoun sense of the word—to “convene” or “concur” or bring about social peace). …
A proper order of convenience would be able to accommodate Hobby Lobby’s religious objections. On this matter and others, the Obama administration seeks an order of justice. I hope, in this case, that it loses.
Micah Mattix demurred from definitively judging Hobby Lobby’s particular moral merits, but criticized Deneen’s sweeping judgment against modern markets:
… Deneen’s argument seems to require a superficial distinction between modern markets and a folksy capitalism of yore when there was no “separation of markets from social and religious contexts.” When was this time? What was this economy? In Shakespeare’s day, fishmongers were reputed cheats—so much so the word became a euphemism for a pimp. And while some 19th century mom-and-pop stores may have helped bring people together, others were as cutthroat as your 21st century venture capitalist. Of course, it may be more difficult to cut the throats of people you know, but it can also be more tempting when you dislike them. Today’s markets are certainly more anonymous, but also less petty and less likely to be used for personal vindictiveness.
Rod Dreher, while also praising Deneen’s column, responded to Emily Bazelon’s argument at Slate that religious liberty is worth fighting for, but not Hobby Lobby’s:
Her argument depends on the belief that “sexual modernity,” as she calls it, is a right that matters more than a religious believer’s conscience. It’s startling. Relatively few Americans oppose contraception, but those that do generally have very strong reasons for doing so. Buying a month’s worth of birth-control pills can cost anywhere between $19 and $162, depending on where you buy them and what kind you get. In Massachusetts, Planned Parenthood sells them for $30 — that’s one dollar per day, for the Pill.
This is an unreasonable burden for employees? The government has a compelling interest in forcing private businesses to provide a service that they believe is intrinsically evil (if they’re Catholics faithful to the Church’s teaching)? Really? As I said, I don’t share the Catholic Church’s view on birth control, but I know many sincere Catholics who do, and it seems to me a grave violation of religious freedom to compel them to cooperate with this policy, especially given that the cost of providing oneself with contraception is so low. …
What’s really at issue here is the belief that when the Sexual Revolution clashes with religious faith, the Sexual Revolution must always win. The sexual and the secular have become sacred. As we see over and over again, for many contemporary liberals, when it comes to opposing sexual freedom, religion’s error has no rights — not even the right to be wrong.
With Justice Samuel Alito’s 5-to-4 opinion, Hobby Lobby and its allies seeking the shelter of the Religious Freedom Restoration Act have gained a foothold, for now, in the tumult of American society’s continued efforts to digest the cultural and economic upheavals of the 20th century. No one should expect this case to close the discussion, however. The 21st century is still very much up for grabs, and declinists and triumphalists on both sides would be wise to exercise caution, and continue the cultural conversation.