Everyone seems to be bent out of shape over the decision the U.S. Supreme Court handed down in the Hobby Lobby case (or “jobby” if you want to try and be cute). Half the people are screaming for the blood of Hobby Lobby (which, as an artificial person, doesn’t actually have any), while the other half are trumpeting a great victory for religious liberty.
We hate to tell you, but they’re both wrong. Given a choice, however, we’d probably side with the folks at Hobby Lobby — we have a decided distaste for government deciding what constitutes freedom of conscience and religious liberty. That being said, however, there are a number of problems with the decision.
First there is the issue of how an artificial person can have even religious rights under the U.S. Constitution, which only applies to natural persons . . . and is not a grant of rights by the State to the people in any event, but from the people to the State. Of course, we can’t expect opponents of the Hobby Lobby decision who are trying to make that case to try too hard to push that point.
The reason is simple. If, as opponents demand, the Supreme Court reversed itself on its Hobby Lobby and Citizens United v. the Federal Election Commission (2010) decisions on those grounds, they would also have to reverse Scott v. Sandford (1857), the Slaughterhouse Cases (1873), and Roe v. Wade (1973), thereby losing much of the power it has garnered since 1803 and the misuse of the (correct) decision in Marbury v. Madison.
The issue is not really religious liberty. The basic legal conception at issue here is, What is a person?
Legally, a person is that which has rights. It can be natural or artificial. The Constitution applies to natural persons only. Confusing the two gets you the brilliant legal decisions we noted above.
The Dred Scott case added fuel to the fire that led to the Civil War, the Slaughterhouse Cases were used to justify Jim Crow, Roe v. Wade has led to the belief that it is perfectly all right to execute millions of innocent people, and Citizens United, while innocuous in and of itself (and thus the one they make the most fuss over) has reinforced the idea that all rights come from the State, and are not inherent in the human person.
Now for the trick question. How are laws permitting abortion less immoral than the Obamacare provision forcing people to pay for contraception against their beliefs or consciences? (We said it's a trick question. They're both immoral, and both contrary to nature, but we’re talking a rather fine point of moral philosophy here.)
Ding-ding. Time’s up. Laws permitting abortion do not force you to act against your conscience in matters involving you personally. They allow it, which is something entirely different. The law forcing you to pay for contraception (which is, in some cases, a fancy way of saying abortion) coerces you to do wrong against your will.
You see the difference? Morally speaking, you can allow laws permitting others to do wrong, at least until you organize and restructure the social order through acts of social justice. You cannot morally allow a law that forces you (or anyone else) to do wrong. You are compelled either to break the law and suffer legal penalties, or obey the law and become a liar. The State is forcing you to be either a criminal against the State, or a traitor to yourself. This is the sort of thing that can lead to disrespect of the law in general, social chaos, or even the overthrow of governments.
Take, for example, the Fugitive Slave Act of 1850. The Act tried to compel every citizen who knew or suspected that someone was an escaped slave either to report it or take action to capture the suspect and turn him or her over to the authorities. It was, until Prohibition, the most widely disobeyed law in the United States. The issue was only settled . . . to a degree . . . by the bloodiest war in American history.
Then there’s the issue as to whether it is a proper role for the State to try and take care of everybody’s needs . . . whether they want them taken care of or not.
The Hobby Lobby decision changes nothing in this regard. The idea that the State is there to provide for people’s individual goods (i.e., wants and needs) and not the environment within which people can meet their own wants and needs through their own efforts remains entrenched.
In moral philosophy, the State is only justified under the principle of double effect in meeting individual needs in extreme cases (Rerum Novarum, § 22), and then only as an expedient until reforms have been effected that enable people to take care of themselves again.
The bottom line here is that, in a very limited sense, the Hobby Lobby decision is a moral victory. Because it allows an unjust program within an unjust system to remain, however, it does not really advance anything. It’s far from the presumed disaster that opponents fear, but pretty much equally far from the victory for which adherents hoped.