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Hobby Lobby & ‘The Bad Old Days’

Did you catch Brett McDonnell’s essay arguing that the left made a mistake in its reaction to Hobby Lobby? McDonnell, a liberal law professor, argues that the Hobby Lobby decision was actually a liberal one. Excerpt: Burwell vs. Hobby Lobby answered two questions, and each answer channels core liberal principles. The first question was: Can […]

Did you catch Brett McDonnell’s essay arguing that the left made a mistake in its reaction to Hobby Lobby? McDonnell, a liberal law professor, argues that the Hobby Lobby decision was actually a liberal one. Excerpt:

Burwell vs. Hobby Lobby answered two questions, and each answer channels core liberal principles.

The first question was: Can for-profit corporations invoke religious liberty rights under RFRA? The court answered yes. HBO’s John Oliver nicely expressed the automatic liberal riposte, parodying the idea that corporations are people. It is very funny stuff.

It is not, however, especially thoughtful stuff. The court does not argue that corporations are just like real people. Rather, it argues that people often exercise faith collectively, in organizations. Allowing those organizations to assert religious-liberty rights protects the liberty of the persons acting within them. The obvious example is churches, usually legally organized as nonprofit corporations.

The real issue is not whether corporations of any type can ever claim protection under RFRA — sometimes they can. The issue is whether for-profit corporations can ever have enough of a religious purpose to claim that protection.

To me, as a professor of corporate law, liberal denial of this point sounds very odd. In my world, activists and liberal professors (like me) are constantly asserting that corporations can and should care about more than just shareholder profit. We sing the praises of corporate social responsibility.

Well, Hobby Lobby is a socially responsible corporation, judged by the deep religious beliefs of its owners. The court decisively rejects the notion that the sole purpose of a for-profit corporation is to make money for its shareholders. This fits perfectly with the expansive view of corporate purpose that liberal proponents of social responsibility usually advocate — except, apparently, when talking about this case.

He goes on to argue that the Hobby Lobby decision also advanced the liberal goal of tolerance of diversity within a pluralistic context. But the left doesn’t see that.

Molly Ball writes that the Hobby Lobby fallout has “split the left” and is hurting the gay rights cause. Excerpts:

One chapter of the controversy is set to close on Monday, when President Obama plans to sign a long-awaited executive order banning federal contractors from discriminating against gays and lesbians, according to a White House official. But the debate that began over that order’s provisions for religious nonprofits has spilled over into a broader conflict. Many prominent gay-rights groups have now withdrawn their support from a top legislative priority, the Employment Non-Discrimination Act, over the religious exemption it contains.

“The religious exemption debate has now been polarized to the point where people are saying, ‘All or nothing,’” said Lanae Erickson Hatalsky, director of social policy for the center-left think tank Third Way, whose research and activism on gay marriage have been instrumental to that cause’s mainstream acceptance. “The narrative that’s now beginning to form is that Democrats are against religion. It’s not true, and it’s very dangerous.”

On what planet is Hatalsky living? Of course it’s true. It is obviously, incontrovertibly true. The Democrats are only “for” religion when it doesn’t threaten their other priorities. I wish it were not so, but I don’t see any way around it. For example, they are “for” progressive religious groups that accept their interpretation of gay rights, but not for tolerating religious groups that do not. Naturally one does not expect progressives, religious and secularist, to endorse religious beliefs and practices they find immoral or unpalatable, but toleration does not require endorsement. In fact, as Damon Linker has pointed out, liberalism requires broad tolerance if it is to be true to itself.

More from Molly Ball’s piece:

The larger fear is that such splits could bring back the bad old days when gay rights and religious rights were seen as irreconcilable—and liberals suffered politically for the image that they were alienated from religious values. The advocates in the middle of this debate hope too much progress has been made for the current controversy to undo it. Sharon Groves, director Human Rights Campaign’s religion and faith program, acknowledged the events of the past few weeks have created tension. But, she said hopefully, “The deep work has already begun to happen in faith communities. I don’t think we’re going to see a return to the old culture wars.”

They are irreconcilable — and honest scholars were saying this as far back as 2006. In this NYT report on the debate back then, the law professor, lesbian, and gay rights advocate Chai Feldblum, who now runs the EEOC, says that gay rights and religious liberty are ultimately irreconcilable — and in her view, gay rights must always win. Back then, Maggie Gallagher wrote the piece to read on this, reporting from a Becket Fund scholarly conference on gay rights and religious liberty. Excerpts:

Just how serious are the coming conflicts over religious liberty stemming from gay marriage?

“The impact will be severe and pervasive,” [Becket Fund head Anthony] Picarello says flatly. “This is going to affect every aspect of church-state relations.” Recent years, he predicts, will be looked back on as a time of relative peace between church and state, one where people had the luxury of litigating cases about things like the Ten Commandments in courthouses. In times of relative peace, says Picarello, people don’t even notice that “the church is surrounded on all sides by the state; that church and state butt up against each other. The boundaries are usually peaceful, so it’s easy sometimes to forget they are there. But because marriage affects just about every area of the law, gay marriage is going to create a point of conflict at every point around the perimeter.”

For scholars, these will be interesting times: Want to know exactly where the borders of church and state are located? “Wait a few years,” Picarello laughs. The flood of litigation surrounding each point of contact will map out the territory. For religious liberty lawyers, there are boom times ahead. As one Becket Fund donor told Picarello ruefully, “At least you know you’re not in the buggy whip business.”

Gallagher says in reading all the papers from the Becket Fund conference, she noticed that those scholars who favored gay marriage were much more aware of the nature of the conflict than those who opposed gay marriage. Chai Feldblum, for example, said that both sides fail to appreciate what’s really going on in this struggle:

“Gay rights supporters often try to present these laws as purely neutral and having no moral implications. But not all discrimination is bad,” Feldblum points out. In employment law, for instance, “we allow discrimination against people who sexually abuse children, and we don’t say ‘the only question is can they type’ even if they can type really quickly.”

To get to the point where the law prohibits discrimination, Feldblum says, “there have to be two things: one, a majority of the society believing the characteristic on which the person is being discriminated against is not morally problematic, and, two, enough of a sense of outrage to push past the normal American contract-based approach, where the government doesn’t tell you what you can do. There has to be enough outrage to bypass that basic default mode in America. Unlike some of my compatriots in the gay rights movement, I think we advance the cause of gay equality if we make clear there are moral assessments that underlie antidiscrimination laws.”

But there was a second reason Feldblum made time for this particular conference. She was raised an Orthodox Jew. She wanted to demonstrate respect for religious people and their concerns, to show that the gay community is not monolithic in this regard.

“It seemed to me the height of disingenuousness, absurdity, and indeed disrespect to tell someone it is okay to ‘be’ gay, but not necessarily okay to engage in gay sex. What do they think being gay means?” she writes in her Becket paper. “I have the same reaction to courts and legislatures that blithely assume a religious person can easily disengage her religious belief and self-identity from her religious practice and religious behavior. What do they think being religious means?”

To Feldblum the emerging conflicts between free exercise of religion and sexual liberty are real: “When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians.” Most of the time, the need to protect the dignity of gay people will justify burdening religious belief, she argues. But that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don’t matter.

“You have to stop, think, and justify the burden each time,” says Feldblum. She pauses. “Respect doesn’t mean that the religious person should prevail in the right to discriminate–it just means demonstrating a respectful awareness of the religious position.”

Feldblum believes this sincerely and with passion, and clearly (as she reminds me) against the vast majority of opinion of her own community. And yet when push comes to shove, when religious liberty and sexual liberty conflict, she admits, “I’m having a hard time coming up with any case in which religious liberty should win.”

Everything that has happened in the eight years since this conference vindicates the views of the pro-gay progressives. The right has been routed in the courts. Marc Stern, the general counsel of the American Jewish Congress, predicted then that some massive legal cases would be coming, including:

Finally, I ask Stern the big question on everyone’s mind. Religious groups that take government funding will almost certainly be required to play by the nondiscrimination rules, but what about groups that, while receiving no government grants, are tax-exempt? Can a group–a church or religious charity, say–that opposes gay marriage keep its tax exemption if gay marriage becomes the law? “That,” says Stern, “is the 18 trillion dollar question.”

Twenty years ago it would have been inconceivable that a Christian or Jewish organization that opposed gay marriage might be treated as racist in the public square. Today? It’s just not clear.

“In Massachusetts I’d be very worried,” Stern says finally. The churches themselves might have a First Amendment defense if a state government or state courts tried to withdraw their exemption, he says, but “the parachurch institutions are very much at risk and may be put out of business because of the licensing issues, or for these other reasons–it’s very unclear. None of us nonprofits can function without [state] tax exemption. As a practical matter, any large charity needs that real estate tax exemption.”

He blames religious conservatives for adopting the wrong political strategy on gay issues. “Live and let live,” he tells me, is the only thing around the world that works. But I ask him point blank what he would say to people who dismiss the threat to free exercise of religion as evangelical hysteria. “It’s not hysteria, this is very real,” he tells me, “Boston Catholic Charities shows that.”


Marc Stern is looking more and more like a reluctant prophet: “It’s going to be a train wreck,” he told me in the offices of the American Jewish Congress high above Manhattan. “A very dangerous train wreck. I don’t see anyone trying to stem the train wreck, or slow down the trains. Both sides are really looking for Armageddon, and they frankly both want to win. I prefer to avoid Armageddon, if possible.”

If this issue interests you, it is really interesting to go back and read Gallagher’s 2006 story from the perspective of 2014.

So, when Molly Ball speaks of “the bad old days” when gay rights and religious liberty were seen as irreconcilable, I don’t understand what she’s talking about. What she really means, I think, is the days before homosexuality was as widely accepted by churches, so as to give a religious veneer to gay rights. The progressive religionists don’t see a conflict between religious liberty and gay rights because they have none, and don’t see any because they believe that orthodox Christians, Jews, and Muslims should violate their own scriptures and traditions to accept the pro-gay line. It is an ideological smokescreen to say that the idea that there’s a conflict between gay rights and religious liberty is an outdated concept of a past culture war. When the gay rights activist Sharon Groves tells Ball that she doesn’t foresee returning to “the old culture wars,” I agree in this sense only: a decade ago, the religious liberty side held much more ground, both in law and in public opinion. That’s gone.

The war could be averted if the left were to do as Stern suggested the right should have done when it held the high ground: adopt a live and let live attitude, consonant with pluralist democracy. The left can’t and won’t do that, because Error Has No Rights. The culture war will continue until there is total surrender. And the Democratic Party has chosen its side. This is true, and while it may be “very dangerous” in Hatalsky’s view, the danger consists in voters who prize religious liberty waking up and understanding what is happening to their rights, and who is pushing for it to happen. From a religious liberty perspective, these are the bad old days — and they’re getting worse.



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