by Hadley Arkes
Back in the 1970s a group of Orthodox Jews in New York faced this quandary: They seemed to have a better chance of winning their case in a civil court, while the outcome promised to be riskier in a rabbinic court. But they finally decided that they would rather lose in a rabbinic court than gain their victory in a civil court, for they didn’t wish to establish that, in matters of consequence to them, the civil law claimed a preeminence, or sovereignty, over rabbinic law.
The lesson they taught here has suddenly sprung into relevance again as we encounter serious arguments on the victory in the Hobby Lobby case, even among friends who have celebrated the outcome.
I, too, was relieved by the fact that the Green and Hahn families were not required by the Obama Administration to become accomplices in endorsing and funding abortifacients for their employees. But I’ve also set down in these columns some serious reservations about the reasoning that was put in place to give us this outcome. The lesson taught by those Orthodox Jews in New York was that, as we seek our ends, we should not install premises that strike at the moral ground of our own position.
I’ve argued in these columns that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion; that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”
With these premises in place, we merely await the imagination and audacity of the people who would gladly appropriate for their side the license that the Court has offered. It takes no high powers of prediction to anticipate this claim: “We sincerely believe that the organism growing in the womb is not really ‘human,’ or anything that we ourselves can regard as ‘fully human,’ with a standing that commands the protection of the laws.” The Supreme Court has long given standing to beliefs passionately held as beliefs holding the same place as religion in the lives of people. And yet, it is not at all clear now why these beliefs, professed sincerely, would not qualify as “religious.”
But a case now bursting on us has delivered this matter from the realm of speculation with a dramatic force. The Wall Street Journalreports that the Obama Administration has come down on the side of Mr. Gregory Holt, who has converted to Islam and changed his name to Abdul Maalik Muhammad. Holt is serving a life-sentence for cutting the throat of his former girlfriend.
In prison he claims a religious duty to wear a beard. But the wearing of beards by prisoners is barred in Arkansas, on several counts, as a risk for security. Things like needles, drugs, razor blades could be hidden in certain – shall we say? – unkempt beards. But the Obama Administration has invoked the Religious Freedom Restoration Act (RFRA) on the side of Holt.