Mennonites & Hobby Lobby - Are Fed Judges Incorrectly Playing Role Of Moral Theologians In Contraception Mandate Cases ?

Melissa Moschella has a piece at Public Discourse at the start of the year I wanted to explore a tad. See The HHS Mandate and Judicial Theocracy . The question is are some judges in the HHS Contraception Mandate cases applying an element of the three prong test of strict scrutiny wrongly. That is the  substantial burden part.

Moschella notes that the Judges in some cases seem to be crossing the line into moral theology and perhaps trying to do something akin to a something like a  Catholic cooperation with evil analysis I suppose .

She looks at Judge Heaton in the Hobby Lobby case as a specific example. She shows even how under such an analysis why Heaton is perhaps wrong. However she gets to the major point after that:



But even if the reasoning were sound, it is nonetheless problematic because its subject matter—moral theology—does not belong in a court decision at all. By using this argument to deny that the mandate constitutes a substantial burden on religious practice, these judges are stepping well outside their proper area of competence. They are making a decision not based on legal reasoning, but on philosophical and theological judgment.


It is true that applying the RFRA—which prohibits the federal government from substantially burdening religious practice unless there is a compelling state interest at stake and there is no-less-burdensome way of achieving that interest—requires judges to ascertain the existence of a substantial burden on sincerely held religious beliefs. In doing so, however, judges should not take it upon themselves to weigh the plausibility or centrality of a particular belief within a religion, for judges are not theologians and should not decide cases based on theological claims.



Rather, judges should take the theological content of the plaintiffs’ claim at face value, limiting their investigation to the factual aspects of RFRA’s criteria: the sincerity of the beliefs, and the genuinely religious (rather than merely philosophical) nature of those beliefs. In this way, judges ensure that unscrupulous individuals are not simply trying to avoid a costly or inconvenient regulation by feigning a religious objection, but refrain from entering into theological disputes. If, for instance, the Greens had never set foot in a church prior to filing their lawsuit, or if Christian theologians and religious authorities unanimously approved of abortion, judges might reasonably suspect that the HHS mandate is really burdensome only to the Greens’ pocketbook, not to the practice of their faith.



One somewhat humorous but real example of a decision under RFRA that provides a model of this way of proceeding is the case of US v. Quaintance (Tenth Circuit, 2008) in which drug traffickers claimed to be founding members of the Church of Cognizance, in which marijuana is worshipped as a deity, and possession and consumption of marijuana are essential aspects of religious practice. Despite the patent absurdity of the Church of Cognizance’s theological claims, the court correctly refrained from questioning the content of the plaintiffs’ beliefs. Indeed, the court granted that the law in question constituted a substantial burden to their stated religious beliefs. What the court questioned and ultimately denied, however, was the sincerity of those beliefs, based on abundant factual evidence that indicated the Quaintances were “running a commercial marijuana business with a religious front.”

I am just starting to explore this but this sounds right to me. 

Ed Whelan appears to agree at his post interacting with this piece.

Mr Whelan brings into the discussion the important case of  Thomas v. Review Board (1981).

That case dealt with a  Jehovah’s Witness  from Indiana that had some problems working in a  factory that produced turrets for military tanks . He had been transferred from the roll foundry that had been involved in the production of raw materials that no doubt also played a part in the war effort. However this Jehovah Witness thought a line had been crossed here and quit. The Courts become involved because there was then a issue of unemplyoment benefits.

Two things strike me about this case that leap out to me. First it was not material at all that other Jehovah Witness working at the plant said there was no religious conflict

The Indiana court also appears to have given significant weight to the fact that another Jehovah's Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was "scripturally" acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill-equipped to resolve such differences in relation to the Religion Clauses. One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here, and the guarantee of free exercise is not limited to beliefs which are shared by all of the members [p716] of a reljgious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.

The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion. Not surprisingly, the record before the referee and the Review Board was not made with an eye to the microscopic examination often exercised in appellate Judicial review. However, judicial review is confined to the facts as found and conclusions drawn. On this record, it is clear that Thomas terminated his employment for religious reasons .

The court also said something else that I think is relevant as to the Judge Heaton in the Hobby Lobby case and other Judges today.



271 Ind. at ___, 391 N.E.2d at 1131. The court found this position inconsistent with Thomas' stated opposition to participation in the production of armaments. But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is "struggling" with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.


The tenor of all this at least suggest to me that perhaps Judge Heaton and others might be making a mistake perhaps.

This happened it appears in part again in Conestoga Wood Specialties Corp. v. Sebelius. See The Elementary RFRA Error .