Exclusive: A Newly Available Hobby Lobby Opinion

This opinion never made it into U.S. Reports. It should be placed there. The author wishes to remain anonymous.


Justice —–, concurring.

I join the majority opinion in full. I offer these thoughts because both the opinion of the Court and the dissenting opinions are troubling.

I.  The Majority Opinion

The majority writes that the Hahns and Greens have a “sincere religious belief that life begins at conception.” I disagree. That life begins at conception is a fact – as much of a fact as the observation that the Earth is round. See —–.

The religious question is not whether life begins at conception. It does. Rather, the religious question is how does our Creator wish us to act in light of that fact or, put more provocatively, what choices does the Creator sanction once a new human being exists? The Greens and Hahn answer that question the same way many others do: they believe that it is wrong to participate in destroying life that the Creator has willed into existence. The fundamental purpose of the guarantee of religious freedom is to allow people like the Greens and Hahns to refuse to participate. They are no different from any other conscientious objector. Except for describing the fact that life begins at conception as a sincerely held religious belief, the majority does an excellent job of explaining that religious liberty protects freedom of action — the freedom to respond to the objective facts about our Creator and the way the Creator calls us to be.

II.  The Principal Dissent

My disagreement with the principal dissent is profound. The principal dissent defends coercion in the name of freedom; justifies taking away choice in the name of choice; opposes what it perceives as absolutism with an all-the-more dangerous absolutism. I do not believe that the author of the principal dissent views her words this way or would approve of anyone using her words to justify HHS’ actions if she understood them to mean what I believe they say. Nonetheless, I cannot remain silent.

First, the principal dissent argues that religious people have no business using the corporate form for religious ends; that the corporate form with its attendant benefits may be used for a certain set of privileged purposes (that is, those purposes of which the principal dissent approves) but no others.

This argument is premised on a set of assumptions that strikes at the heart of the First Amendment. The First Amendment guarantees government neutrality among religions. The Framers prohibited the establishment of an official religion. The government would never be permitted to deem a particular religion as the official one and compel adherence at the point of a gun.

The Framers did not envision the principal dissent. They understood the will to rule, to dominate, to coerce. They understood that that will to power would seep through any crack. They thought the First Amendment provided a sure guarantee of religious freedom.

What they did not – indeed, could not – envision was that those seeking power would jettison the Creator in their quest for control. Yet, that is what happened. The First Amendment posed no obstacle to the implementation of the moral predilections of those in control as the morality was not “religious” and, indeed, mostly anti-religious.

Once established, the First Amendment cemented this morality’s grip on power. An exaggerated notion of the wall between Church and state prevented religious opinions from offering a different vision of the truth. As the quip puts it, “Shut up, he explained.”

But that was just the first phase. The next phase was the distribution of government largess that excluded “religious” ideas. A telling example is the government refusal to contract with Catholic Charities for adoption services because of what Catholics teach about the family. It was just a short step from this to affirmative coercion. Unfortunately, it is a step that principal dissent takes.

A simple example might help to see how quickly one can go from religious tests for the distribution of benefits to naked coercion. Assume there are two groups of people. These people have different answers to the question about the killing if human beings in utero. One group believes that it is wrong even to facilitate such a killing. Let’s call that group HL. Another group of people think it is morally proper to kill people in utero and decide to profit by doing the killing. Let’s call this group PP.

HL and PP decide to go into business. HL decides to profit by providing craft supplies; PP decides to profit by killing people. Both are answers to the moral question about how to respond to fact of the new person’s existence.

Under the principal dissent’s reasoning, PP is entitled to all the benefits of the for profit corporate form while HL is not. PP can act on its moral vision because its vision excludes God. HL, on the other hand, cannot act on its moral vision because its vision includes God. This perverse result destroys the very thing that the First Amendment was intended to protect — religious belief and practice — in the name of protecting religious belief and practice.

It gets worse. The HL-PP example focuses on the use of religion to exclude religious people from access to government distributed benefits. This case involves government-mandated action contrary to a religious belief. The ACA commandeers the employee benefits infrastructure of employers of a certain size to distribute insurance benefits that the government deems essential. Four abortifacients have been deemed essential as if pregnancy is a disease or the new life is a cancer. The Hahns and Greens simply do not want to be the government’s agent in facilitating the death of these human beings. The ACA mandates that they do so. The principal dissent approves of this result and deploys an bevy of outlandish hypotheticals in support. Suffice it to say that we should not fail to protect the Hahns and Greens today because of some hypothetical case that may never arise tomorrow. “Sufficient unto the day are the cares thereof” is a pearl of wisdom that the principal dissent should heed.

III.   Alternative Grounds For Protecting Religious Liberty

Before concluding, it is important to note that there was alternative ground upon which this case could have been decided. The ACA imposes a very large tax on the Hahns and the Greens. The majority correctly holds that the size and scope of this tax substantially burdens the Hahns’ and Greens’ freedom to conscientiously object to providing abortifacients through their businesses. The government and the principal dissent agree with the majority on this point. According to the argument and the dissenting opinion, forcing the Hahns and Greens to provide abortifacients is critical to the whole edifice of the ACA, something without which it would come tumbling down. If so, one can assume Congress set the tax high enough to effectively overwhelm the free choice of the taxpayers. In this case, then, the tax has lost its features as a “tax” and is therefore an unlawful penalty. I would conclude that the shared responsibility payment provisions of the ACA are unconstitutional.

IV.  Conclusion

I am troubled by this case. I am troubled that the government mandated employers like the Hahns and Greens to facilitate the destruction of human life. I am troubled that our First Amendment jurisprudence has become a cudgel for silencing religious believers. I am troubled by the principal dissent’s willingness to countenance the government’s effort to force employers to help kill certain, entirely helpless people. I am troubled that we have so quickly forgotten the limits of Congress’ taxing power in this precise context.

At the same time, I am hopeful. I am hopeful that the goodwill that has characterized this Nation’s approach to religious pluralism will continue. I am hopeful that once the First Amendment will be restored to its proper place in the pantheon of our liberty and come to shield religious people from “men of zeal,” arrogant and unthinking, rather than being a sword with which those men coerce conformity to their religions without God.

Signed: Justice X, his mark


h/t Phil Lawler at Catholic Culture.org


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