I took my stand at the Law and Liberty site. From one of the excellent comments over there, I learned that I might have been misleading. I’m not against the Court’s decision. I just wanted to explain why it’s so weak in terms of sustainable protection of anyone’s religious liberty. Nobody should rely on the Court to protect fundamental rights.
While you’re over there at L and L, you should check out Hadley Arkes’s commentary on the Court’s Hobby Lobby opinion. He highlights what’s obviously true about the Court’s failing to even begin to offer a coherent defense of religious liberty. That’s another aspect of the decision’s weakness.
Hadley wishes he could have written a concurring opinion. Well, I do too. One reason Hadley is for a much more activist Court than I am is that he sees how much good it could do if its opinions were consistently rooted in what we really can know about who we are. Sadly, I think that if Hadley, by some miracle of God, were on the Court, he’d be writing nothing but concurring and (much more often) dissenting opinions. More often than not, judicial activism has morphed into a tool wielded by those who want to replace deliberation by conversation-stopping appeals to high principle.
Hadley thinks, quite rightly, that the Constitution can’t be interpreted merely to protect sincere religious belief. Religious liberty must be based in the confidence that such belief is or could be really true or not merely some willful worldview that opposes itself to what we know through science. The Hobby Lobby guys are reasonable to believe that some forms of contraception are really abortion, and that all abortion is the taking of innocent human life. Their belief isn’t merely sincere. Some people, after all, are sincerely crazy or sincerely oppressive.
There’s no need to agree with those guys to see that if the free exercise of religion means anything, it means maximum conceivable respect for their liberty to act according to what they think they know about personal equality and personal liberty. Hadley is right that this is a Catholic or “natural law” view of the issue.