Given the minor firestorm set off by my Hobby Lobby post, I take it our readers are interested in the issues. If you’re interested in the legal issues background for the forthcoming Hobby Lobby SCOTUS case, check out Eugene Volokh’s awesome series of Hobby Lobby posts that he’s posting throughout the week. Here are the first seven:

Hobby Lobby Week Next Week

Hobby Lobby, the Employer Mandate, and Religious Exemptions

1A. What is the Religious Freedom Restoration Act?

1B. Why Have RFRA-Like Religious Exemption Regimes?

1C. How RFRA May Make Religious Exemption Claims More Appealing to Courts

2A. Do Religious Exemption Rights Extend to Commercial Behavior?

Does RFRA Allow Exemptions From Burdens Imposed on Corporations?

I will link to the rest of the posts here as they’re posted. I’m not a constitutional law scholar on these issues, though I’ve done a limited amount of reading in the area. So my interest is primarily in the normative issues at stake in the Hobby Lobby case (not including the normativity involved in proper judicial reasoning). So if the posts or your own further reflections raise normative questions not covered in my last post, feel free to raise them here and I may be able to find time to address some of them.

I thought it might be useful for me to briefly summarize my normative view on these issues (which I defend at great length in my forthcoming book, Beyond Separation), I’m a public reason guy of the convergence-stripe: I think all intelligible reasons can count in favor or against the justification of laws, and I include religious reasons as intelligible reasons. This is emphatically not to say that religious reasons alone can justify coercion, as there will be secular defeaters for nearly all such laws. But religious reasons can amount to defeaters for laws rather easily, and in cases where a law is sufficiently broadly publicly justified, but defeated by a small few, I argue that an exemption should be assigned. I also argue that secular reasons amount to defeaters just as easily, and that religious and secular moral conscience should be placed on the same legal footing. Together they provide oodles of defeaters for laws. (This is one reason public reason liberals should lean libertarian.)

This is not to say that I’m prepared to second-guess the court about how to resolve the issues judicially, but rather that some legal body should assign the exemption if the law from which people are exempted is to respect persons as free and equal. So on public reason grounds I support an extensive legal regime of accommodations, both religious and secular, and in cases where excessive accommodations undermine laws, I argue that justice and respect for persons requires reforming or repealing those laws.

On this basis, I think the Greens have a defeater for the coercion involved in applying the law to them. That means either (a) respect for the Greens requires giving them an exemption or (b) respect for the Greens combined with  considerations of feasibility of the accommodation, equality with secular objections, etc. should lead us to repeal the contraception mandate entirely. I much prefer (b). But respect for the Greens bars alternatives to (a) and (b) because their religious reasons are sufficient to show that they do not have reason to endorse the law. If giving the Greens an exemption from the contraception mandate imposed harms or coercion on Hobby Lobby’s employees that outweighed the harms or coercion involved in barring the exemption, some of the employees might have defeaters for the exemption.* But note that this would probably only defeat (a), leaving us with (b) as morally required. The employees’ complaint cannot justify burdening the conscience of the Greens by making them complicit (as they understand it at the right level of idealization) in acts they regard as immoral (at the right level of idealization).

In Chapter 5 of Beyond Separation, I defend an account of moderate idealization which shows why people like the Greens indeed have sufficient reason to object to coercion even if their comprehensive doctrines are false and even if they would abandon these views were they fully rational and fully informed.

My view, it should be noted, strikingly contrasts with the mainstream public reason view on which religious reasons fail to be justificatory reasons because they are neither shared nor mutually accessible to (most) other citizens. The shared and accessible reason restrictions ground the mainstream approach to religion in public life that is rightly derived as privileging the secular over the religious and burdening the integrity of religious believers. But I think the mainstream view is plainly wrong, and I have argued as much in half a dozen journal articles in addition to my book (see my CV for a list easily identifiable by their titles; I offer PDFs of some of those articles here).

*My friend Chad and I have been discussing whether saying that employees “have defeaters for the exemption” is the right way to put the matter. Perhaps it is better to say that they have defeaters for the law-that-contains-exemptions, but not for the base-law (the law that does not contain exemptions). So employees would have the following rational ranking (with 3 being the lowest): 1. base-law, 2. no-law, 3. law-containing-exemptions. But the Greens have the following rational ranking: 1. law-containing-exemptions, 2. no-law, 3. base-law. Or more likely: 1. no-law, 2. law-containing-exemptions, 3. base-law. So it looks like the only “eligible” option, the only one that can be justified to all, is getting rid of the contraception mandate entirely. So if the employees have a defeater, it is only for the law-containing-exemptions.