by Thomas Larson (November 2014)
The Hobby Lobby decision, written by U.S. Supreme Court Justice Alito and passed by a 5-4 ruling in June, continues to reverberate in American culture like a car alarm that won’t shut off. As most everyone knows, the Court had to decide whether “three closely held corporations [which] provide health-insurance coverage for methods of contraception . . . violate the sincerely held religious belief [italics added] of the companies’ owners.” Contraception here refers to four of twenty methods approved by the FDA, intrauterine devices or pills that supposedly prevent a fertilized egg from implantation in a woman’s womb, which is defined as pregnancy. To prevent such implantation of a viable embryo is considered by some to be abortion. More important, religious fundamentalists say that once sperm meets egg, an ensouled human life has begun. Ending it, pre- or post-implantation, is murder.
As such, what these four contraceptives actually accomplish is not subscribed to by the medical community. Ob/gyn Jen Gunter, writing in The New Republic, says that three of the four methods Hobby Lobby cites inhibit ovulation; there’s no egg to abort. The fourth, the I.U.D., may end an embryo’s life but the odds are one percent.
Back to the decision. Hobby Lobby’s “exercise of religion,” the Court said, is at odds with the government, which, under the Affordable Care Act, provides such abortifacients to their employees, in effect, harming Hobby Lobby’s exercise. In the Court’s majority opinion, the establishment clause of the Constitution protects a person’s right to hold—that is, act on or seek a “remedy” if that right is violated—a sincere religious belief. Americans have the right to live according to their religions’ prescriptions. Supporters of the Court’s ruling call it a victory for religious liberty.
Before I look at the biblical foundation for Hobby Lobby’s belief, I first want to ask, what does sincerity mean and why might the justices have chosen this word for their ruling? Sincerity means to be honest of mind, to be free from deceit. Sincerity is an emotion which people hold. Only people can be honest. Only people can free themselves, or be freed, from deceit. Thus, the Court had to rule, as it did in Citizens United, that a corporation has personhood. One worry is, if the Court establishes a corporate personhood, a fetal personhood may soon follow.
As corporate owners, Hobby Lobby’s owners, the Greens, as well as other litigants have a right to exercise their religious belief—as long as it is sincere—and this right deserves protection. The state establishes and recognizes the right. Religion establishes the condition of sincerity, and people, in turn, enact it. Since I can conceive of no insincere religious belief, it would seem any belief is sincere. That’s not entirely true. Sincerity is a measure of belief. The degree to which it is held is what counts. How much rides on these words! You cannot just possess a religious belief: it must be engaged for it to be valid. Moreover, I think the Court is saying that people create a system of beliefs in which their sincerity allows their religion to exist, to be shared and exercised, and to be spread. If one is to believe in, for example, a miracle birth, resurrection from the dead, and an afterlife—what must be taken on faith is what no one has experienced except Jesus Christ—then such beliefs require a kind of emotional attachment for them to be “true.” In the absence of factual evidence, we have to have a people sincerely holding beliefs. That’s religion.
One way of being religious is personally attesting to its claims. You stand up and declare, I believe: in the Holy Ghost or in Jesus as your personal savior. Where do you get these beliefs? As I say, from your emotional attachment to them. But you also get them from the religion’s doctrines, codes, texts, and rituals. Here attesting to is not enough. You don’t just declare allegiance to a doctrine; you must practice it. You must enact or emote it. In New Orleans, gospel singers say, “We don’t go to church; we do church.” Doing is community, worship, deeds. Proof comes when you practice those beliefs with others across time and in community. With its tenets, you raise children, you worship, you get married, you hold funerals, you ask forgiveness, you declare your assent publicly, and you participate with your faith socially.
That’s the deep grain of religion—the exercise of a set of beliefs that are held and practiced because others, in long communal chains, have also exercised that set, largely unchanged, mostly unchallenged, and certainly not of your making, for a good while before you. Believing in the principles of a religion owes nearly everything to past tenet-holders, especially their zeal. Otherwise, you could launch a religion—say of Doo-Wop music or deep-sea fly-fishing—but it would take a few centuries (the Mormons have done it in less than 200 year with a little help from God who directed an angel to tell Joseph Smith where the “golden plates,” the Mormon Gospel, were buried) in addition to a multitude of rituals and raiments, churches and parishes, walled cities and gun-guarded states, hot testimonial engagement, door-knocking proselytizing (the first duty of Christians one TV Baptist preacher tells his congregants is to “win souls”), and books, preferably the One Book, be it singular or a collection of writings, to make the practice of a religion a religion.
This One Book, which I’ll get to, is also fundamental: where else do the set of beliefs that the sincere hold exist but with religious principles outlined in holy texts?
In America, you exercise your religion, additionally, within the civil boundaries of our society and its laws. To be recognized as such, the religion has to look and sound like other historical faiths whose identities come wrapped in their titles: Islam, Judaism, Protestant, Orthodox, and Satanic. To illustrate, the Church of Scientology has, since 1953, failed to become a religion in the eyes of the U.S. government, even though scientologists say they are a faith. The IRS has refused the church’s every appeal and labels it a nonprofit corporation, in effect, a cult or a commercial entity instead of a bona fide religion. The message is, you can’t claim your own religious law (or exemption to the law, here, taxes) that okays, for instance, animal sacrifice, teenage brides, multiple wives, or the stoning of apostates—and expect parity with other beliefs. Heavily theocratic countries permit such things because religion is not separated from the state. Maybe this culture of religion helps clarify the hazy descriptor, sincerity. For religious claims to have legal currency in American society they have to support widely held interests that are also humane. (Satanic doesn’t quiet measure up, I fear.) Sincerity is an individual expression of faith but it’s also an expression of the troops—those who belong to something much vaster, perhaps more ethical, than you yourself might claim.
My point is this: the Hobby Lobby decision, with the phrase sincerely held religious beliefs, has, in effect, defined a belief as that which members of a known religious group embody. Religious believers are those who evince a common sincerity with others of the faith for the faith. It seems like a roundabout way of nailing down what a religion is—by the ardency of its adherents’ claims and their action in practicing them. People adhere to a religion that already has adherents; they may adhere to a culture, a society, or a government as well but those secular entities bond its members, perhaps, with less of faith’s stickiness. Because I was born in America, I’m a citizen, guaranteed rights and protections by law. I’m grateful for such governance. But, despite the patriot’s fever, my Americanness is not remotely a religious hookup. Many Americans are Christians because they practice the faith. The touchstone is that their practicing faith in Christ along with millions of other Christians reifies the belief—makes it real. The road gets muddy, however, when a constitutional protection of that reality is not recognized by all.
The Court’s decision seems to uphold the fervency of belief, its sincerity, as a faith’s ontology, and the Court implies that belief comes from a believing, practicing people. Because religion is not fact-based, sincerity acts as a kind of fact or proof. In science, in most human endeavors, facts are things people know, not things they believe in. Science is not organized around belief; science is based on observation, experiment, and reproducibility. Despite the believer’s appeal to foundational texts, historical writings, exegesis, and tradition for its validity, a religion’s “truth” remains unproven. What we witness in religious people, and this has currency only via their own accounting, is their devotional engagement as proof in itself. That is his or her sincerity.
The Supreme Court has said it will never rule on the validity of a religion. Still, the Hobby Lobby decision invites a potent inference, namely, that by delineating a religious conviction’s sincerity, the Court assumes a religion doesn’t just rehearse collective emotion; that emotion must hail from a community, a history, a text. To grok the phrase, sincere religious belief, the question of origin is essential. A religion comes from what others believe in, which precludes what you believe in, and what the Court defines as “a community of believers.” Justice Ginsburg: “Religious organizations exist to serve a community of believers.” One might say, reasonably, that your belief in Christianity comes from your daddy who taught you to believe. Or your belief comes from your scriptural reading of a holy text, from the gospel music in your church, from a dance your grandmothers did one spring night under a full moon. It comes embodied in the iconic statement we hear, if we train our ears on the evangelical preacher, “God said it. It’s in the Bible. I believe it.”
Which barrels right to the point. A religious belief has to have—in reverse order—a longtime arc of believers to establish it, the stickiness of sincerity with which it holds its members, and a beginning, an initial rite. Its adherents possess traditions, practices, and rituals to be sure. But religions have their big bangs, and these origins (New Testament, Torah, and Koran) state in written or oral language (codified over centuries) what people believe, who decreed that belief, and from whom the claims have risen, through decree and through story. Otherwise, without an onset, for example, an intervention by God, sacrificing his son at a time and place in human history, the faithful wouldn’t know what to hold sacred.
A religion is its practice in time and over time. Equally constitutive, its claims typically are “given” to them by a deity. Hobby Lobby’s owners believe that aborting a fertilized egg is murder because an embryo is a human being and a soul, doubly ignited by God at conception. This claim comes from the Bible, a book written or inspired by God, in the Greens’ faith tradition. The belief is evidenced via text or, more accurately, via well-oiled interpretations of text. Indeed, their convictions can be traced to three verses: Jeremiah 1:5, “Before I formed thee in the belly I knew thee; and before thou camest forth out of the womb I sanctified thee, and I ordained thee a prophet unto the nations”; Job 31:15, “Did not he that made me in the womb make him? And did not one fashion us in the womb?”; Psalm 139:13, “For thou hast possessed my reins: thou hast covered me in my mother’s womb.”
While Scripture has many mentions of “womb,” the three cited are used to wield the pro-life cudgel. And yet, as justifications to support a religious claim (and remember religions to be true marshal emotion over evidence: believers envision dead people in the clouds), can these verses be any more inexact than they are? The Jeremiah explanation seems to apply just to Jeremiah as a prophet who is (was?) sanctified in the womb; the problem is that there’s no attempt to say this I/thee sanctification is universal. Are all fetuses sanctified? Why not say so. What’s more, the verse relies on the slippery and unagented ideas of “formed thee” and “knew thee.” As a body, a soul, a historical life? (Contrast this with a quotation from Hamlet about death and dying: “the dread of something after death,/ The undiscovered country from whose bourn/ No traveler returns.” Even with its metaphorical twist, aren’t feeling and fact clear?)
In the second two quotations—it is typical of Biblicists that such questions of human origin and the “right to life” are considered vouchsafed by a handful of verses—I question the notion of being “made” and “covered” “in the womb” as adequate delineation. Why use such general verbs to imply an on/off switch for the fetus as person? Why didn’t God-the-author dictate “thou hast begun my life at conception” or, metaphorically, “thou hast launched the ship of my soul at conception”? Why not denote the moment of conception as life-cum-soul instead of the abracadabra-ish “in the womb”? Isn’t it obvious where sperm meets egg and soon implants? We know where. We disagree about how to qualify this embryo—is it a viable human life, an unborn child, the onset of the soul?—and, consequently, what its status might be in law.
(When I read these verses-as-proof, or verses in service to contemporary issues, I’m reminded that the Bible is not the Word of God but that of a strange canon of mostly muzzily purple prose writers. By contrast, the best literature never gets to be best unless an author exacts the fullness of a character or a self via story while also reflecting on that story’s meaning. In this sense, the Bible would have improved by reducing its Mount Ararat of imperatives and moralizing credos—rhetorical choices, as a teacher, I tell every writing student to use sparingly—and by enhancing human interaction, especially the internal struggle between faith and doubt. Hard to do, yes, but it’s not hard to understand.)
Those three “womb” verses ride in, Pony Express-style, on the horse of Scriptural authority. It’s one of humankind’s most tautological thoroughbreds: That because it’s in the Bible, it’s true. We don’t know God wrote the Bible, nor do all Americans accept the Bible’s divinity or inerrancy. Such authorship, claimed by millions, is doubted—or dismissed—by millions. Even if God wrote it, the truth claim’s unclear: God, Robin Williams hoped, would greet him at the pearly gates by saying, “OK, now two Jews walk into a bar.” It’s the problem with stating, in a foundational document, the luxuriant line “all men are created equal.” Equal, Mr. Jefferson, in what way? Evolution and society deny such equality at every turn. It’s the problem with all suppositions about creation. To characterize creation, we err mightily when we lightning-strike a law or rule with these telescoped phrases—be they “sincerely held” or “in the womb.” We are, as Wittgenstein argued, too easily bewitched by language: to really understand the words that rule us we have to disenthrall ourselves from their spells, often the province of specious reasoning.
I think this is the secret to the mealy-mouthed wording of these foundational documents. Text sticklers do not want precision, for without it the gates of interpretation open wide and, when differences arise, the interpreter can assert, as evidence, the “intent” of the originators. The U.S. Constitution is a case in point. Leaving the founding fathers’ words as their words is not possible, despite the imprecise or highly interpretable wording, for example, of the Second Amendment. How did a well-regulated militia become “open carry” and “stand your ground”? They did—via law. This is what courts, in their majority and dissenting opinions, are for. To redress the imprecision of such documents, sort out what they mean from what they imply—for better and worse with the gun issue.
All Americans agree that the Court can rule on the constitutionality of a law because we have a law-decreeing Constitution, a document that binds us as a people. Perhaps the Bible binds Christians similarly. But Christians cannot enchain Americans to biblical law, let alone say that their murky claim to a soul, born at implantation, needs to be honored by those (Hobby Lobby’s employees) who are not Christians. To say a fertilized egg is abort-able—which it is—is also to say the decision to abort is primarily, if not totally, governed by the egg’s carrier, a woman, that is, not by a religious belief. Hasn’t that right or choice been granted to women in Roe v. Wade? Hasn’t the Affordable Care Act, under the auspices of the FDA deemed twenty contraceptives necessary to women’s reproductive health? Why is the Green family’s objection to removing a fertilized egg greater than the female employee’s—or any woman’s—constitutional guarantee to decide for herself, in consultation with a doctor, even if she terms it, as the Greens do, an abortion? A female, working for Hobby Lobby, should be allowed to say that her employer’s religious objection to her right may not supersede her right. I note Justice Ginsburg’s pragmatic objection: there are “health hazards” for “employees who do not subscribe to their employers’ religious beliefs.” A woman’s freedom from, or management of, those health hazards is what the government is protecting.
There is a parallel mattering here about fetal personhood we should not miss. The degree to which the Court has ruled that a “sincerely held religious belief” is now a right of privately-held corporations—which I argue neither the Bible commands nor our Constitution allows—is also the degree to which others say it’s not a right. Against the decision, nonbelievers and women can answer, No: mere sincerity guarantees nothing. As I said earlier, the Bible, or citing it, for that matter, doesn’t prove anything or evince any right. The Bible states beliefs—people assign rights to themselves, via constitutional government; those rights are created by the consent of the governed not the imposition of a God’s will.
Still, licking my wounds, I have to acknowledge that since Hobby Lobby, the other litigants, and the Court agree that a sincerely held religious belief requires government protection, the precedent is set. (Likewise, Roe v. Wade has set its own precedent.) I don’t think it’s too much to assert that with this decision the Bible’s authority—as the inarguable origin and sole proof of Christian belief—is re-centralized in our culture. As such, it has rallied the religious right who believe this ruling is a blow for religious liberty, coming, finally, against many secular victories, in recent decades, that uphold Americans’ right to be free from religion. The lesson of Hobby Lobby is that the Biblical justification of belief is back, re-grounded, if sketchily, in law.
If one belief against abortifacients can use the religious sincerity of its devotees to prevail in the Court, what’s to stop other beliefs from marshaling their emotions to the same end? Proof of this Pandora’s box can be read in Justice Ginsburg’s dissent: “How does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition [in an earlier ruling] that ‘courts must not presume to determine . . . the plausibility of a religious claim?’” If one injunction is granted, why not corporate owners’ religious objections to blood transfusions, vaccines, homosexual lifestyles, or gay marriage? Ginsburg is reminding the Court that, in a number of tantalizing cases, it has never run with the question of whether a religious claim is plausible. Why now?
Suddenly we have a Big Bother: a Court-established standard that may, in the future, allow any reasonably emotional claim of a religious nature into its “sincerity group.” Abortion is just one of many conditions or procedures or customs that are against the Bible’s teaching. Might servitude, corporal punishment, wifely duty be protected by conviction and pass the Roberts court?
The beastly inference has been loosed from its cage: the Court is not (exactly) defining a religious belief but, like pornography, it suggests that it knows one when it sees one. The tag religious denotes that the claim comes from community, history, and text, and sincerely says it’s based in emotion—emotion, not reason: perhaps emotion is evidence for believing that which has no proof. That, I think, is the 20-point headline. How strange that the Court has, with one phrase, defined the degree to which one’s emotional engagement with a religious tenet and text is all that’s necessary to win a special class of constitutional protection. This emotional force—and how does one argue against the testimonial proof of one’s religion?—has the power to widen cracks in the wall between church and state or create new fissures where they didn’t exist before. The alarm keeps sounding: we should be more than worried.
Journalist, critic, and memoirist, Thomas Larson is the author of three books, the most recent, The Sanctuary of Illness: A Memoir of Heart Disease. He is a longtime staff writer for the San Diego Reader and Book Reviews Editor for River Teeth. Larson teaches in the MFA Program at Ashland University, Ashland, Ohio. His monthly blog, “Mysteries of the Heart,” is at Psychology Today. His website is www.thomaslarson.com.
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