follow-up on Hobby Lobby: Jain vs. atheist cage match

Many Jains are vegans, based on their deeply-held religious belief in the principle of ahimsa, or non-violence toward all creatures. Many atheists are also vegans, based on, say, a deeply-held non-religious belief that human beings, as animals, should not elevate themselves above other animals. One question that the Hobby Lobby case raises is, should these two beliefs be treated differently by the law?

Consider: many medications are made using animal products, including, for example, gelatin capsules, medications that use lactose as a stabilizers, and certain vaccines that are cultivated in chicken eggs. For highly devoted vegans, religious or otherwise, this can pose serious ethical issues. And, like the Hobby Lobby plaintiffs, they might well object to being asked to provide these products to others, too.

So I think a Jain employer would have an excellent chance, under Hobby Lobby, of demonstrating that the ACA insurance mandate a substantial burden to her free exercise of religion. Whether the government would then be able to demonstrate a compelling interest and narrow tailoring is an interesting question, but let’s stick with substantial burden for just a moment. The question is, could an atheist vegan claim a similar burden?

The question seems ridiculous at first glance, but there are at least two things to consider here. First, “religion” is not always clearly defined in the law, and rightly so: to define it clearly is essentially to prefer some kinds of religious belief or experience over others—which is exactly what the law is not supposed to do. In this sense, there’s a peculiar tension in both the Free Exercise Clause and statutes like RFRA: in order to protect religion, we must necessarily decide what counts as a religion; but that decision is, itself, an act of governmental favoritism. Any criterion you can think of for separating religion from non-religion is likely to leave out either practices most people would call religions or deny legitimacy to the idiosyncratic beliefs and values of the non-organized but devout, or both. Is Taoism a religion? Confucianism? Theosophy? Scientology? What about Paul Tillich’s version of Christianity? What about Philip K. Dick, having highly idiosyncratic experiences with God in his Orange County apartment?

The other reason we might want to honor the atheist vegan’s beliefs is that a declared religion can be, but is not always, one’s central guiding principle in life. Consider, instead of an atheist vegan, a vegan who is nominally—but not passionately—Catholic as well. Our Catholic has sex outside of marriage, uses contraception, and frequently skips Mass… but never eats meat or eggs, never wears leather, never uses products containing gelatin. Our Catholic could not care less about the contraception mandate, but it deeply, profoundly concerned about providing medicines derived from animals and animal products. It seems strange to say that our middling Catholic could get an exemption from the contraception mandate, which she actually does not care about, but cannot get an exemption for the thing she cares most about in the world, solely because the former is grounded in something we call “a religion” or “religious belief.”

And it becomes even stranger if we imagine, instead, a nominal Jain, who doesn’t really care about the tenets of her supposed faith, but who independently and for entirely secular reasons is also a vegan. It seems strange to say that the Jainism she took hold of loosely and without enthusiasm—perhaps from her parents, or from a spouse—gains her the exemption that her sincere, pure-hearted, and lifelong devotion to veganism could not.

Of course, to some extent that problem is just baked into the First Amendment and RFRA: it is those instruments that use the word “religion” without defining it, and without examining the assumptions about religion that underlie the idea that you could keep church and state separate. Still, all is not lost—there is, in fact, precedent for defining “religion” broadly.

The statute enacting the draft in the early 1960s allowed potential draftees to claim conscientious objector status if their “religious training and belief” prohibited the taking of life in war. “Religious training and belief” was defined as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.” In the 1963 Supreme Court case U.S. v. Seeger, several not-particularly-religious pacifists challenged the statute, in part on the ground that it “does not exempt nonreligious conscientious objectors.”

A unanimous Court interpreted the statute quite broadly, holding that

Congress, in using the expression “Supreme Being,” rather than the designation “God,” was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views. We believe that, under this construction, the test of belief “in a relation to a Supreme Being” is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders, we cannot say that one is “in a relation to a Supreme Being” and the other is not.

None of the Seeger plaintiffs were exactly atheists… but they were not quite believers, either. The plaintiff whose name graces the case, Daniel Seeger,

declared that he was conscientiously opposed to participation in war in any form by reason of his “religious” belief; that he preferred to leave the question as to his belief in a Supreme Being open, “rather than answer yes’ or `no'”; that his “skepticism or disbelief in the existence of God” did “not necessarily mean lack of faith in anything whatsoever”; that his was a “belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed.” He cited such personages as Plato, Aristotle and Spinoza for support of his ethical belief in intellectual and moral integrity “without belief in God, except in the remotest sense.”

However, a few years later the Court saw another plaintiff, in Welsh v. U.S., who was more resolutely non-religious:

In the case before us, the Government seeks to distinguish our holding in Seeger . . . . [I]t is stressed that Welsh was far more insistent and explicit than Seeger in denying that his views were religious. For example, in filling out their conscientious objector applications, Seeger put quotation marks around the word “religious,” but Welsh struck the word “religious” entirely, and later characterized his beliefs as having been formed “by reading in the fields of history and sociology.”

Welsh firmly insisted to the draft board that

taking of life [is not], for me, a religious wrong. Again, I assumed Mr. [Brady (the Department of Justice hearing [p342] officer)] was using the word “religious” in the conventional sense, and, in order to be perfectly honest, did not characterize my belief as “religious”

And he explicitly disavowed the language of the statute as applying to his beliefs, even absent any reference to the “Supreme Being”:

I believe that human life is valuable in and of itself; in its living; therefore, I will not injure or kill another human being. This belief (and the corresponding “duty” to abstain from violence toward another person) is not “superior to those arising from any human relation.” On the contrary: it is essential to every human relation.

Still the Court found that even Mr. Welsh could qualify as a conscientious objector:

If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content, but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual “a place parallel to that filled by . . . God” in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a “religious” conscientious objector exemption under § 6(j) as is someone who derives his conscientious opposition to war from traditional religious convictions.

Justice Harlan, however, had a slightly different take on the issue, although he ultimately concurred in the Court’s judgment. Harlan found the majority’s reading in both Seeger and Welsh strained. Citing five dictionary definitions of “religion,” he noted that

four include the notion of either a Supreme Being or a cohesive, organized group pursuing a common spiritual purpose together. While, as the Court’s opinion in Seeger points out, these definitions do not exhaust the almost infinite and sophisticated possibilities for defining “religion,” there is strong evidence that Congress restricted, in this instance, the word to its conventional sense. That it is difficult to plot the semantic penumbra of the word “religion” does not render this term so plastic in meaning that the Court is entitled, as matter of statutory construction, to conclude that any asserted and strongly held belief satisfies its requirements.

But he also thought that this meant that the statute was simply unconstitutional, because preferring a theistic to a non-theistic belief, or an organized religion to individual conscience, was an unlawful preference for, and hence establishment of, a certain kind of religious practice. In Harlan’s view,

[T]he statute . . . excludes from its “scope” individuals motivated by teachings of nontheistic religions, and individuals guided by an inner ethical voice that bespeaks secular, and not “religious,” reflection. It not only accords a preference to the “religious,” but also disadvantages adherents of religions that do not worship a Supreme Being. The constitutional infirmity cannot be cured, moreover, even by an impermissible construction that eliminates the theistic requirement and simply draws the line between religious and nonreligious. This, in my view, offends the Establishment Clause and is that kind of classification that this Court has condemned.

If the exemption is to be given application, it must encompass the class of individuals it purports to exclude, those whose beliefs emanate from a purely moral, ethical, or philosophical source.

Interestingly, for Harlan, strength of belief, rather than its nature or content, should be the touchstone of defining what “religion” is:

The common denominator must be the intensity of moral conviction with which a belief is held. Common experience teaches that, among “religious” individuals, some are weak and others strong adherents to tenets, and this is no less true of individuals whose lives are guided by personal ethical considerations.

And, like me, he found it unacceptable that the same moral belief should be given more or less power under the law depending on its religious or non-religious foundations:

The appropriate disposition of this case . . . is determined by the fact that, at the time of Welsh’s induction notice and prosecution the Selective Service was, as required by statute, exempting individuals whose beliefs were identical in all respects to those held by petitioner except that they derived from a religious source.

Today, the words “Supreme Being” have been removed from the statute. The reference to religious training remains, as does the explanation that it does not include a “merely personal moral code.” But their legal effect appears to be minimal; the Selective Service Board itself explains that:

Beliefs which qualify a registrant for CO status may be religious in nature, but don’t have to be. Beliefs may be moral or ethical; however, a man’s reasons for not wanting to participate in a war must not be based on politics, expediency, or self-interest. In general, the man’s lifestyle prior to making his claim must reflect his current claims.

I think this is the right approach, given the establishment problems Harlan pointed out. But likely that means that RFRA, to avoid precisely the same problems, should be read to embrace our atheist vegan.

And if we were really being consistent about it, we likely ought to put those claiming a “religious” belief to the same “lifestyle” scrutiny as those claiming a “moral or ethical” belief. That means not only does the atheist vegan get in under RFRA, but maybe a nominal, half-hearted Jain doesn’t. In much the same way that you can’t claim to be a Quaker to the draft board, but be unable to demonstrate any Quaker practices in your life prior to receiving your draft notice, perhaps you can’t claim a belief for RFRA purposes without demonstrating a sincere and sustained commitment to that belief.

UPDATE: Forgot to link this—Nancy Leong has some thoughts on this as well, circling around the idea of atheists as outsiders in our society, and promises a future post on RFRA and Hobby Lobby specifically.

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One Response to follow-up on Hobby Lobby: Jain vs. atheist cage match

  1. Pingback: follow-up on Hobby Lobby: final thoughts | The Handsome Camel

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