On Hobby Lobby: Where Ginsburg and Alito Go Astray

by Joshua Schulz
for Crisis Magazine

As a faithful Catholic with moral objections to forced Christian complicity in both abortion and contraception, I had many reasons to rejoice in the Supreme Court’s majority decision in Burwell vs. Hobby Lobby written by Justice Alito. Unfortunately, the Court’s reasoning was not one of them. Two premises in the majority’s argument were especially troubling: first, the Court’s assertion of the legal inscrutability of moral and religious beliefs, and second, its assumption of the Government’s claim that contraceptives and abortifacients are necessary for women’s health and well-being. Contrary to the first premise, I agree with dissenting Justice Ginsburg that we can judge such cases on their merits and that the Court’s justification for refusing to do so is both weak and dangerous. Against Ginsburg, however, I would argue that examination of the second premise reveals serious conceptual confusion about what constitutes medical care. Moreover, the fact that we can detect such confusion is evidence, contrathe Court, that we can offer principled arguments for limited government that do not require liberal premises about the inscrutability of moral and religious beliefs.

Let’s begin with what we might call the Inscrutability Doctrine. The Court distinguishes between religious and secular grounds of argument, holding that religious but not secular arguments are legally inscrutable, or outside the ken of the Court (38). Indeed, the Court asserts that a major methodological mistake in the arguments of both HHS and Ginsburg is that they overstep this boundary, “in effect tell[ing] the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step” (38). No reason for this refusal is given. In practice, the consequence of theInscrutability Doctrine is that “religious” plaintiffs are under no burden to offer evidence of the rationality of their beliefs, but only of the “sincerity” with which they are held, whatever that means—and that those who disagree with “religious” positions cannot offer evidence of the irrationality of such beliefs.

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Joshua Schulz teaches moral philosophy in the Catholic intellectual tradition at DeSales University in Center Valley, PA. He earned his doctorate in philosophy from Marquette University in 2010.