Hobby Lobby: Private and Public is the Real Issue

By Craig Hovey

The real issue with this week’s Supreme Court Hobby Lobby decision isn’t primarily religion; it is what counts as private and public. Religion is a factor, but only secondarily: religion is private (so is sex); state interests are public. The interesting development that has everyone talking—though it is an extension of the Court’s logic in the Citizens United case of 2010—is that corporations are now not only “persons” with rights, but the freedoms of corporations now include religious liberties on matters of individual conscience. (Some people, playfully, detect a sick irony in the idea that “corporations have a conscience.”) 

But I think all of this is secondary to the real issue of public v. private. 

The pro-choice Roe v. Wade (1973) decision famously asserted or upheld the right to privacy for individuals and backed away from personhood arguments for fetuses. I believe we are now witnessing the pro-life side using both the personhood and privacy arguments in their favor. If a fetus can’t be a person, how about a corporation? If pregnancy is a private matter in which the state has a very limited role, why shouldn’t the “personal conscience” of corporations be safeguarded from the state (in this case, from the mandates of Obamacare)? Some might cynically conclude that all of this rights-talk gets hauled out by either side only whenever it suits them and that this ad hoc deployment of such powerful legal arguments fails to account for how they can be turned around to argue the opposite. (The philosopher Alasdair MacIntyre predicted this in his 1981 book After Virtue—“rights” are floating free from more substantive moral traditions). Let’s test this. 

Suppose I have religious objections to war. As a matter of conscience, then, I might also object to whatever portion of my tax dollars that goes to support the Pentagon. Should I be

able to withhold a portion of my federal taxes on religious grounds? Some say yes, and some actually do withhold it, though they are not legally protected when they do it. But it is doubtful that we’ll ever see the Supreme Court decide in favor of this. Why? Because religion is “private,” just like sexuality as the Left argues in Roe v. Wade and the Right is arguing now with regard to contraceptives. So as long as religion and sexuality stay where they belong (in the private sphere), no one sees a problem. Of course lots see a problem with the Hobby Lobby decision—precisely because medical care, labor rights, and so on are championed by many on the Left for being public and not private. These two spheres are coming into conflict.

We would see the same contradiction rise to the surface if religious people sought legal exemption from paying taxes that support war. But as long as war is considered public and religion is considered private, officially no one should be raising these kinds of issues. In fact, most religious people don’t think about raising moral qualms about war in ways that seek legal exemption. Why? Because they too accept that religion, like sexuality, is private. This, in my view, explains why the only moral issues that are currently being debated as matters of religious conscience are sexual ones and it is nearly impossible, in these times, to imagine an equivalent movement of religious conscience against so-called public matters like war.