In the wake of Hobby Lobby, the attacks on religious belief in the public square—along with the confusions which often fuel such attacks—have been…shall we say…even more apparent. As our Jason King pointed out Monday, the Chronicle of Higher Education recently published a piece by Peter Conn which let loose with both barrels. He leaves nothing to the imagination in claiming that Christian colleges and universities “systematically undermine the most fundamental purposes of higher education.” Can’t misinterpret that kind of direct statement.
On the same day, a piece was published in the Huffington Post by Ronald Lindsay who led off by admitting that what he was about to ask might appear to be based on bigotry. The maybe bigoted question? “Is it appropriate to have six Catholic justices on the Supreme Court?” For Lindsay, a widely published public bioethicist, the reasoning of the majority in Hobby Lobby “effectively undermines confidence in Catholic judges.”
The confusion present in these and many other hit jobs on public religious belief, especially post Hobby Lobby, appears to rest primarily in a broader confusion about the nature of religious belief itself. A paradigmatic example of this confusion can be found in Justice Ginsburg’s dissent when, contrasting them with for-profit corporations, she claims, “Religious organizations exist to foster the interests of persons subscribing to the same religious faith.” A moment’s reflection on institutions like a Catholic-run women’s shelter or a Jewish-run hospital demonstrates that this claim is not only mistaken, but just plain odd.
But it may seem less odd when we think about how others on the court reacted. Another moral theologian wrote me after the decision and made the following point:
“Two of the Jewish justices apparently agreed with the Catholic justices about the extension of personal religious freedoms into corporate structures, with specific reference to Jewish delis—that is, if a deli incorporates, does it lose the religious freedom to follow kosher in the event of regulation. So the problem of the Religious Other who fails to understand the secularized-Protestant consensus on the “private” nature of the “spiritual” kingdom is even worse than it appeared.”
It would be quite natural for those influenced by Judaism or Catholicism to reject the idea that religious people cannot come together and form a public businesses with a corporate religious identity. It would be difficult for these traditions to imagine a religious identity could be anything but corporate, just as it would be difficult for both traditions to check their faith at the door of their offices and in effect admit that this public activity operates by a different set of rules. It would be an admission that they serve two masters.
Some of most scathing criticisms of the view that Hobby Lobby could have a corporate religious identity have come from the very same quarters that (rightly, in my view) push businesses to pay their workers a living wage. Would, say, Catholic owners of a closely held corporation have a duty to follow Catholic social teaching and pay their workers such a wage? If it makes sense to talk about a business having religious duties, then it makes sense to talk about a business having religious freedom to exercise those duties. (Incidentally, and while on this point, not enough people have pointed out that the Christian faith of Hobby Lobby’s ownership was reflected in the justice-centered way they compensated their employees—paying them twice the minimum wage.)
This view may resonate with many Catholics and Jews, but as the colleague who wrote me suggests, this isn’t exactly the understanding of religion espoused by a significant number of individual- and privacy-centered US Protestants. And it is this view of religion that has been running the show for multiple generations when it comes to our culture’s dominant understanding of religious freedom. On this view, the US public discourse is “secular” and operates by a set of rules and principles which are different from one’s private “religious” life. The latter receives the protection of religious freedom, while the former does not. (Or at least not in the same way.) Indeed, the Center for American Progress went so far as to say that the new SCOTUS ruling that public businesses now have religious freedom “turns the notion of secular society on its head.”
That is a little dramatic, but it is not wrong. As Cathy Kaveny points out, Hobby Lobby was an activist, progressive decision on the part of SCOTUS. It is a decision which, in my view, expands the notion of religion in a way which defends vulnerable religious minorities, and in particular religious minorities whose understanding of their faith requires them to reject the individualism and privatization of the more dominant understanding in our culture.
But there is another way in which (US-style) religious freedom creates problems for religious minorities in this country, and it also connected the nature of religion and of religious claims. The Chronicle and HuffPo pieces cited above both rest on an epistemological confusion. Conn and Lindsay give no indication they are aware that all normative claims are contextual. That anyone making normative claims starts with faith-based first principles. That most often these principles are under-girded by a narrative or story which simply grabs or claims one by some kind of intuition or other authority.
The uncritical assumption shared by Conn and Lindsay is that while “religion” may have this faith-based foundation, the “secular” world is not so encumbered. Many moral theologians find this view naïve in the extreme, and the response so obvious that it hardly needs to be said. But especially given the post-Hobby Lobby reaction, it apparently needs to be said: the first principles of every normative tradition—from hedonistic utilitarianism to ecofeminism—are based on some kind of dogmatic appeal to authority. And that authority is often wielded and enforced by those with power, especially in the academy. With this insight in mind, Alan Jacobs did this take-down of Conn’s position in The New Atlantis, arguing that
“academic freedom is a concept relative to the beliefs of the academics involved. I have a sneaking suspicion that [Conn] is even naïve enough to believe that the University of Pennsylvania, where he teaches, is, unlike Wheaton, a value-neutral institution. But as Stanley Fish pointed out years ago, “What, after all, is the difference between a sectarian school which disallows challenges to the divinity of Christ and a so-called nonideological school which disallows discussion of the same question? In both contexts something goes without saying and something else cannot be said (Christ is not God or he is). There is of course a difference, not however between a closed environment and an open one but between environments that are differently closed.”
Ross Douthat has made a similar point. He argues that we have
“a serious moral defect at the heart of elite culture in America. The defect, crucially, is not this culture’s bias against social conservatives, or its discomfort with stinging attacks on non-Western religions. Rather, it’s the refusal to admit—to others, and to itself—that these biases fundamentally trump the commitment to “free expression” or “diversity” affirmed in mission statements and news releases. This refusal, this self-deception, means that we have far too many powerful communities (corporate, academic, journalistic) that are simultaneously dogmatic and dishonest about it—that promise diversity but only as the left defines it, that fill their ranks with ideologues and then claim to stand athwart bias and misinformation, that speak the language of pluralism while presiding over communities that resemble the beau ideal of Sandra Y. L. Korn.”
But I go with Jacobs over Douthat on the source of the problem: I don’t think it is dishonesty. I think it is a genuine mistake based on confusion. And it is a confusion which, ironically, may have its source in a similar confusion present in the self-understanding of American religious believers. Certain kinds of publicly influential American Christians (mostly Protestant, but the critique applies to many Catholics today as well) have simply accepted the secular/religious binary, and have agreed to play by the its rules in our public discourse. Implicit in these rules is a sense that a “secular” discourse, evacuated of all explicitly faith-based content, is somehow more objective, more rational, more convincing. It is therefore more appropriate for the public sphere. Explicitly faith-based approaches are not appropriate for serious academic institutions and for evaluation of federal laws by serious Supreme Court justices because such approaches are beholden to faith based first principles.
But as Jacobs, Douthat, and many, many others (another important example is that of Jonathan Haidt) have shown, “secular” normative are similarly beholden to dogmatic starting points. One unintended consequence of accepting US-style religious freedom has been that these traditions get a free pass, and continue to have a privileged place in our public discourse based on their supposed objectivity and rationality. Why does this myth persist? Perhaps their not being explicit about their faith-based starting points, and therefore not identifiable as “religious”, means that by default they must be on “the other side” of our simplistic religious/secular binary. Meanwhile, those who are explicit about their faith-based starting points–especially when those starting points challenge the dominant view of the nature of religious belief–are marginalized from the public discourse and subject to what in other contexts would be called bigotry.
Happily, the Hobby Lobby decision not only created new breathing space for those with the minority view, it provides a much-needed opportunity for our culture to adopt a more authentic understanding about the nature of religious belief and its role in public life.