In the days after the Supreme Court’s controversial 5–4 ruling in Burwell v. Hobby Lobby, everyone was an expert, and, naturally, everyone had an opinion. As an intern for the American Religious Freedom Program this summer, I spent hours tracking social media responses to the ruling, and, for the most part, I was thoroughly unsurprised by what I saw: my New York friends’ outraged diatribes on Facebook, the carefully crafted messages of liberal Congress Members, and such witty tweets as, “Working at Hobby Lobby is probably the best contraception anyway.” I was, however, astonished by how quickly Americans around the country came to the conclusion that the Religious Freedom Restoration Act—the bipartisan act that has been protecting practitioners of all faiths for over twenty years—needs to be repealed.
The Religious Freedom Restoration Act, or RFRA, was passed in 1993 by a unanimous House and an almost unanimous Senate in response to a Supreme Court ruling that had allowed federal laws to burden the free exercise of religion so long as the laws were not purposefully targeting religions. Congress members found that these laws could nevertheless be just as harmful to religious exercise as laws that were intended to interfere with religious exercise, so with the passage of RFRA, they reinstated what is known as the Sherbert Test, establishing a more concrete and clear way to protect our First Amendment right to the free exercise of religion: the federal government may not “substantially burden a person’s exercise of religion” unless it can demonstrate that the “application of the burden…1) is in furtherance of a compelling government interest; and 2) is the least restrictive means of furthering that compelling government interest.”
It is this test that prevents the government from restricting the religious rights of Muslims, Native Americans, and, yes, Christians across our nation, and it is this test that the HHS Mandate of the Affordable Care Act, which requires all employer health plans to provide free contraceptives and abortifacients, has failed. Using RFRA’s Sherbert Test, the Supreme Court has decided in Burwell v. Hobby Lobby that the owners of closely held corporations cannot be forced to pay for their employees’ abortifacients.
The ruling has been widely viewed as a devastating blow to the liberal social agenda and its pro-choice movement. This is in no small part because both the media and social media have neglected to point out that only four types of contraception are at stake in Hobby Lobby: intrauterine devices, contraceptive rods placed in the arm, and two kinds of the morning-after pill. Hobby Lobby willingly provides insurance coverage for sixteen other types of contraception. But ignoring the facts, blinded by their anger, and fearing a supposed “slippery slope,” Democrats are determined to do something to reverse the damage done by the decision—to reverse it and ensure it can never happen again.
They cannot challenge the highest court in the land, so Democrats have found another solution: they can move to repeal RFRA in order to negate the ruling altogether. Without RFRA, Hobby Lobby would be void, and women would regain our so-called “reproductive rights.”
But without RFRA, the first of our fundamental Constitutional rights—the right to the free exercise of religion—would be put in grave danger. Our nation would no longer be the shining beacon of hope that has welcomed generations of victims of religious persecution since our earliest beginnings on Plymouth Rock. Our national integrity is threatened if we willingly subordinate our first, fundamental right to the “rights” of the liberal social agenda.
And, in an ironic twist, neither can the liberal social agenda itself maintain its own integrity if it swoops in to defeat RFRA. Democrats may succeed in knocking the legs out from under Hobby Lobby, but surely they will, in turn, be shooting themselves in the foot. Allow me to explain.
There is an obvious hypocrisy in play here: liberals toot their horns of righteousness as they support the freedom of women and gays and immigrant children; yet they refuse to support the freedom of the faithful—of Christians and Muslims and Jews and…the list goes on. But there is another hypocrisy that’s somewhat harder to spot, one that may get to the very heart of the Hobby Lobby decision: the notion that liberals are “pro-choice.”
What began as the world’s most successful advertising slogan for the pro-abortion movement seems to have quickly become the moral foundation for much of the liberal social agenda. The word “choice” is a constant refrain. Women should be able to choose what to do with their bodies and their unborn babies. Men and women should be able to choose whom to love and to marry. Now even biology is subject to one’s personal whims—if I’m feeling particularly masculine today, I can choose to be a man. In our modern age, when we can pick an Uber driver, order a pizza from Seamless, and select a Netflix all in a matter of seconds, we not only desire choice—we demand it.
When faced with any given choice, we must often choose between what is perceived as right and wrong, good and evil. Not always—we probably cannot judge whether it is morally better to order pizza or sushi—but often. And if we choose what is perceived as wrong, or evil, when we could have chosen the good, then we are likely to be blamed and condemned by our peers.
But if we throw our hands in the air and declare that we had no choice, that we had to do the “evil” thing, then public opinion may suddenly swing in our favor. For example, we have, as a society, traditionally been more accepting of homosexuals when we are told that they don’t choose to be gay. Likewise, we are far more accepting of abortion when it is not so much a choice as a necessity: the mother will die without it.
The liberal social agenda is committed to the importance of personal choice and to removing any social stigma attached to the choices we make. By declaring that we have a “right” to make our personal choices, liberals aim to mute all censure and turn the tables: the one who judges is now the bigot.
This so-called “right” would be completely unfounded were it not for one, remarkable thing: the First Amendment. Our government protects the rights of people belonging to various identities, but the right to religious freedom is the only protection offered for an identity that people have chosen. We do not choose to be born black or white. We do not choose to be born male or female. We do not choose to be born able-bodied or disabled. And we have laws and amendments that protect the rights of people of different races, genders, and abilities.
But we do choose our religion. Religion, unlike gender or race, has to be a choice. My choice to believe in a religion is what makes my belief meaningful. If faith were easy to find, if it came naturally, we would have no need for “a leap of faith.” When faced with both good and evil, I have chosen what I believe to be the good. It is that active choice that makes me one of the faithful, and in many religions, it is that active choice that will bring about one’s eventual salvation.
Therefore the First Amendment, in protecting our religious freedom, teaches us that certain rights are valid even when they protect personal identities that we have chosen to assume: if I choose to be an Episcopalian, I have rights; if I choose to be a Muslim, I still have those rights. And in that respect, religious freedom is fundamentally “pro-choice” in the absolute sense of the term. Surely, then, liberals ought to be the strongest proponents of religious freedom. Surely they should be defending RFRA with all their might.
Furthermore, they should be supporting the Hobby Lobby decision itself, which is also “pro-choice” under our current definition. After all, the Supreme Court did not rule that abortifacients are morally wrong—the justices did not even address such a question; rather, they ruled that we have the right to choose to believe that abortifacients are morally wrong and act accordingly.
It may well be countered that although Hobby Lobby is “pro-choice” for the employers, it is not “pro-choice” for the employees, who are now subject to their employers’ religious beliefs. But it should be noted that extending an employer’s religious belief so that it applies to his whole corporation is entirely consistent with the actual pro-choice movement; indeed, it is more “pro-choice” than the pro-choice movement. Why?
It must be remembered that the Hobby Lobby decision only applies to closely held, privately-owned corporations. The Green family owns and controls the Hobby Lobby Stores, and Hobby Lobby does nothing without the Greens. Hobby Lobby makes no choices for itself. The Greens are responsible for Hobby Lobby’s growth and well-being. Indeed, they might even call Hobby Lobby…their “baby.”
Allow me to continue the analogy. A mother must make every choice on behalf of her unborn baby. He, like a corporation, is utterly dependent, unable to make any decisions for himself. And, ironically, in the eyes of many pro-choice advocates, he is just as much of a non-being as the corporation is.
Democrats are up in arms about an employer’s religious choice applying to his whole corporation. But their pro-choice movement hinges on the idea that a mother has absolute autonomy over her body and the unborn baby inside. One might posit that the extension of the employer’s choice granted Hobby Lobby is not all that different from the extension of the mother’s choice granted in Roe v. Wade.
But of course it is different. When the mother chooses to have an abortion, she takes away the possibility of her unborn child’s future life. And with that possibility, she takes away every choice that child would ever make for the rest of his life.
But the employees of a corporation do not depend on that corporation for life itself—they exist as living beings outside of work. After all, unlike the fetus in the womb, they chose to be a part of the corporation. So whatever choice a corporation makes, its employees can still look for other options outside of the corporation. If an employer chooses not to provide free abortifacients, he does not prevent his employees from choosing to obtain abortifacients by any other means. Nor does he prevent them from choosing to take the abortifacients. Choice remains for the employees. So who is more “pro-choice,” in the absolute sense of the term? Those who support women’s “reproductive rights” or those who support Hobby Lobby and RFRA?
I invite those who think Hobby Lobby is a major defeat for the pro-choice movement to reconsider. I invite you to reconsider Hobby Lobby, and I invite you to reconsider what it means to be “pro-choice.” Your “rights” are in no way threatened by the right to religious freedom; on the contrary, your “rights” are strengthened by it. You need the Religious Freedom Restoration Act just as badly as our nation needs it. In a world that is torn apart daily by differences in religion, it would be foolish and tragic for us to turn our backs now on the right that has guided us through the generations. Our nation has witnessed population shifts, technological revolutions, and moral upheavals, but one thing has remained certain: our first, fundamental right. But now we are faced with a grave choice: protect religious freedom or fall into uncertain and treacherous waters. May we choose wisely.