Feb 8, 2013

Beyond "religious liberty"

Most of the attention given to the roiling legal fight over insurance coverage and birth control and the limits of religious exercise has come in the form of arguments about "religious liberty."

It is an issue of religious liberty, of course, though the tendency has been for those arguments to obscure more than they reveal. An example of this is Mike Huckabee's advocation for the craft store Hobby Lobby last month. Huckabee encouraged people to shop at the chain in an act of solidarity, a consumption-as-politics act of activism. He said:
They are having to fight in court for the most basic American rights of freedom of religion and freedom of speech .... The Obama administration insists that companies like Hobby Lobby bow their knees to the God of government health care mandates, even when those mandates are a clear and direct contradiction to their personal beliefs of faith.
The conflation that he's making here, between the corporation, Hobby Lobby, and "their personal beliefs of faith," is exactly what's at issue in these lawsuits. The grammatical issue of replacing a singular noun with a plural pronouns isn't an accident; it's the point. In promoting the identification of an individual shopper with the company, Huckabee's not actually making an argument that for-profit corporations can have religion and have the right to exercise religion, but re-casting the issue as a conflict between those who are for and those who are against religious freedom.

For the most part, though, it seems that the people most concerned with these legal battles are only concerned contingent on this confusion.

So it's interesting to see two conservative Christian media outlets approach the Hobby Lobby et al legal battles with Obamacare's HHS contraceptives coverage mandate from a very different direction. This last week, there were two articles where the lawsuits were put into a very different context.

At Christianity Today, journalist Melissa Steffan connected the legal cases to the pro-life movement. She wrote:
The battle over the mandate—and the emergency contraception it requires—has long been over personhood. Is a fertilized egg a person? Do the emergency contraceptives stop eggs from uterine implantation, ending a person's life?  
But now the legal battles against the HHS employer contraceptive mandate are shifting to very different questions of personhood: Are for-profit corporations "persons" in such a legal sense that they have religious rights? And do their religious liberties allow them to avoid the mandate?
Steffan doesn't try to articulate what the connection between those two arguments about personhood might actually be. The people she quotes -- mostly advocates for the companies suing the Obama administration -- don't approach that question either. The question is only raised, and pointed at.

It's a really interesting incongruity, though. Are the people who are dedicated to the idea that life begins at conception comfortable with this expansion of the definition of "person" to include corporations? Is this merely a pragmatic tactic, or is there an underlying philosophical connection between these two arguments about personhood?

At First Things, meanwhile, a professor from Pepperdine approached these lawsuits by connecting them to arguments about Sharia law in America.

Michael A. Helfand wrote:
The more religion has gone commercial, the more difficult it has become for courts to figure out how to treat conduct that that is simultaneously religious and commercial. Of course, these constitutional skirmishes are part of a far larger infrastructure of religious commerce. 
Notable examples include Sharia-compliant financial instruments and Jewish heter iska agreements, both of which are mechanisms for restructuring loans so as to avoid Islamic and Jewish law’s respective anti-usury rules. Religious communities have embraced contracts that use commercial forms to govern and structure a variety of religious relationships, such as employment contracts, arbitration provisions, and prenuptial agreements.
I don't entirely follow Helfand's line of reasoning. If I read him right, he's pivoting off of these lawsuits to make the case that religious laws have a place in American jurisprudence. His conclusion is that,
the best way to prevent the potential negative impact of religious law is to encourage ingenuity and creativity precisely at the nexus of religion and commerce. So long as courts continue to ensure that parties enter such agreements out of their own volition, the sophisticated drafting of agreements and structuring of relationships can provide solutions to the most worrisome religious customs and practices. Those supporting initiatives that hope to disaggregate religion and commerce miss the core insight that commercializing religion isn’t the problem: It’s the solution.
What this has to do with Hobby Lobby and other for-profit corporations opposed to insurance plans that cover employees' contraceptives, I'm not sure. It's interesting, though, to see the several emerging alternative rubrics for thinking about these legal cases besides arguments about "religious liberty."