Academic journal article Harvard Law Review

The Hobby Lobby Moment

Academic journal article Harvard Law Review

The Hobby Lobby Moment

Article excerpt

American religious liberty is in a state of flux and uncertainty. The controversy surrounding Burwell v. Hobby Lobby Stores, Inc. (1) is both a cause and a symptom of this condition. It suggests a state of deep contestation around one of the key markers of the church-state settlement (2) : the accommodation of religion. The problem is social and political, not judicial, although judges are obviously influenced by those larger forces. Courts are rarely at the forefront of significant social change (3). Judges are constrained by their function: to decide specific cases, based primarily on a finite (if malleable) set of materials such as prior precedents and statutes. (4) Hobby Lobby itself turned not on the vagaries of the Religion Clauses, but on the directions laid down by Congress in the Religious Freedom Restoration Act of 1993 (5) (RFRA). The Court is routinely criticized for the incoherence of its Religion Clause jurisprudence. (6) Inevitably, there are doctrinal disagreements among judges on these issues. On the whole, however, the judicial treatment of the American church-state settlement has been relatively stable.

Conditions are much more fraught outside the courts. In public discussion and in the scholarly community, the very notion of religious liberty--its terms and its value--has become an increasingly contested subject. (7) In the space of a few short years, the basic terms of the American church-state settlement have gone, in Professor Lawrence Lessig's useful terms, from being "taken for granted" to being "up for grabs." (8) Once a fairly "uncontested" issue that remained in the "background of public attention, " religious accommodation has become a "contested" issue occupying the forefront of public debate. (9) The change has been sudden, remarkable, and unsettling. The Court's decision in Hobby Lobby will influence the debate outside the courts. But the decision will not resolve that debate. If anything, it seems more likely to heighten and prolong the public tension than to calm it.

Unsurprisingly, given the polarized nature of the larger debate over religious accommodation, most discussions of Hobby Lobby and the contraception mandate have been equally polarized. On one side of the divide, some saw the contraception mandate as "trampling" (10) or "assault[ing]" religious liberty. (11) On the other side were those who warned that a win for Hobby Lobby threatened our local and national civil rights laws, (12) and perhaps the rule of law itself. (13) After the ruling, most of the immediate reaction to the decision was similarly divided. The polarizing nature of the issue, and of the Court's decision, was both reflected in and encouraged by Justice Ginsburg's stinging dissent. (14)

As always during times of revolutionary (or reactionary) passion, those who are more concerned with analyzing the conflict than with participating in it may find themselves squeezed from both directions. When an issue moves to the foreground of social contestation, one is expected to choose sides. Nevertheless, some writers have taken an interest in evaluating and sometimes lamenting the current struggle, not just fighting it. (15)

This Comment falls into the analytical category. I have my own views on the merits of Hobby Lobby. (16) But it is the controversy over the contraception-mandate litigation, not the case itself, that takes center stage here. (17) I focus less on the doctrinal questions the Court dealt with or left unanswered, and more on the legal and social factors that turned a statutory case into the legal and political blockbuster of the Term.

More specifically, in thinking about the broader social context that made Hobby Lobby so prominent and the debate over it so inflamed, it is the moment that matters. We are in the middle of a process of social contestation on some key questions: between certain issues being taken for granted in one direction and their being equally taken for granted in the other direction. …

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