Looking for Law in All the Wrong Places

Justice Beyond and Between

Marianne Constable, Leti Volpp, Bryan Wagner, Marianne Constable, Leti Volpp, Bryan Wagner

• Publisher: Fordham University Press
• Year: 2019
• Print ISBN:
  9780823283705
  9780823283712
• Edition: 1
• eBook ISBN:
  9780823283729
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

For many inside and outside the legal academy, the right place to look for law is in constitutions, statutes, and judicial opinions. This book looks for law in the "wrong places"—sites and spaces in which no formal law appears. These may be geographic regions beyond the reach of law, everyday practices ungoverned or ungovernable by law, or works of art that have escaped law's constraints.

Looking for Law in All the Wrong Places brings together essays by leading scholars of anthropology, cultural studies, history, law, literature, political science, race and ethnic studies, religion, and rhetoric, to look at law from the standpoint of the humanities. Beyond showing law to be determined by or determinative of distinct cultural phenomena, the contributors show how law is itself interwoven with language, text, image, and culture.

Many essays in this volume look for law precisely in the kinds of "wrong places" where there appears to be no law. They find in these places not only reflections and remains of law, but also rules and practices that seem indistinguishable from law and raise challenging questions about the locations of law and about law's meaning and function. Other essays do the opposite: rather than looking for law in places where law does not obviously appear, they look in statute books and courtrooms from perspectives that are usually presumed to have nothing to say about law.

Looking at law sideways, or upside down, or inside out defamiliarizes law. These essays show what legal understanding can gain when law is denied its ostensibly proper domain.

Contributors: Kathryn Abrams, Daniel Boyarin, Wendy Brown, Marianne Constable, Samera Esmeir, Daniel Fisher, Sara Ludin, Saba Mahmood, Rebecca McLennan, Ramona Naddaff, Beth Piatote, Sarah Song, Christopher Tomlins, Leti Volpp, Bryan Wagner

Religion

Wendy Brown

8. When Persons Become Firms and Firms Become Persons: Neoliberal Jurisprudence and Evangelical Christianity in Burwell v. Hobby Lobby Stores, Inc.

The Case

IN JUNE 2014, in a 5 to 4 decision, the Supreme Court ruled that, under the Affordable Care Act (aka “Obamacare”), owners of corporations cannot be forced to provide their employees with insurance coverage for contraceptives that offend the owners’ religious beliefs.1 Hobby Lobby, a national chain of craft stores, was joined in the suit by Conestoga Wood Specialties, cabinetmakers in Pennsylvania. Both are what the Court calls “closely held” (as opposed to shareholder) corporations and are owned and controlled by Christian families who believe that life begins at conception and that any contraceptive method destroying or preventing implantation of a fertilized egg is a sin against God. The plaintiffs argued that the requirement to provide health insurance covering these methods would render them complicit in an act they believe to be sinful, abridging their right to religious freedom.2

The plaintiffs objected specifically to four of the eighteen contraceptive methods required by the Act’s contraception mandate: two forms of IUDs and two forms of the “morning after pill,” also known as Plan B. The contraception mandate itself issued from a series of rulings in previous decades wherein insurance companies that covered prescriptions while excluding birth control were found to violate women’s civil rights. So the Act required that contraception be included in a list of preventive services provided at no additional cost to patients.

The Majority Opinion found that the contraception mandate forced the plaintiffs into a choice: violating their religious beliefs by funding the contraceptive methods they considered abortifacients (this is a Church view but not a medical or scientific one; Jack Jackson calls it “faith-based science”)3 or pay up to $475 million in penalties in order to remain faithful to their beliefs.

The majority based important parts of their ruling on the Religious Freedom Restoration Act (RFRA). This twenty-two-year-old piece of federal legislation was a retort to a 1990 Supreme Court ruling that religious groups can’t claim exemption from neutral, generally applicable laws. Under RFRA, if a law compromises your religious practice, you can claim an exemption unless the government proves that the law is essential to advancing a compelling government interest and that it is using the “least restrictive means” to pursue that interest. In deciding Hobby Lobby, the majority argued that the contraception mandate passed neither test.4

One last feature of the decision is important to reprise here. The extension of personhood to corporations, required for the Court to award them the constitutional right to the free exercise of religion, was tied, first, to a definition in the 1871 Dictionary Act, where “the wor[d] person . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”5 It was tied, second, to the fact that nonprofit corporations (e.g., churches) have had standing with the RFRA in a series of cases, and, the Court argued, “no conceivable definition of the term [person] includes natural persons and nonprofit corporations but not for-profit corporations.”6

So this extraordinary Supreme Court decision grants free exercise of religion to hypostasized corporate persons to enable their protection of hypostasized egg persons. Meanwhile recognizable Homo sapiens for whom the decision might be most consequential—fertile heterosexually active or simply rapeable biological women—make only rare appearances in the pages of the Majority Opinion.7

Frames of Analysis

THERE ARE A number of ways to read and analyze Hobby Lobby, and there are different political, jurisprudential, and doctrinal trends in which it can be placed. I want to develop these as separate strands before integrating them into a frame explaining how neoliberal jurisprudence facilitates a specific set of evangelical conservative Christian aims today, how it enables a kind of market evangelism that pushes back against secular guarantees of equality and nondiscrimination.

The Doctrinal Path of Religious Exemptions

UNTIL 1963 THE Free Exercise clause of the First Amendment was not generally treated as a basis for exemption from federal law. Rather it was construed as being free from harassment, by the government or others, in the private exercise of religious belief and practice. But that year, in Sherbert v. Verner, the Court ruled that exemptions were required unless they compromised a compelling government interest. This was reversed in the 1990 decision Employment Division v. Smith, where, interestingly, it was the most liberal members of the Court who dissented, arguing to preserve exemptions.8 In 1993 Congress loudly disagreed with Smith when it passed the Religious Freedom Restoration Act, giving religious objectors a statutory right to exemptions where there was no compelling government interest for denying them. This RFRA (unlike the explosion of state and local RFRAs passed in recent years) was not yet conservative backlash and was voted into law by a nearly unanimous Congress. Still, some worried that the exemptions granted by RFRA now discriminated in favor of religion, a position embodied in the 2005 Cutter v. Wilkinson decision. And then there was the question of just how far religious organizations could go in exempting themselves from employment law, tested again in the 2012 case Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, where the Court unanimously supported the Church’s right to choose its own minister, over the plaintiff’s claim that her termination was disability-related discrimination.

There’s much more to this history, but the unique chapter added by Hobby Lobby should be obvious: if, for two decades, Congress and the Court had been leaning toward interpreting the Free Exercise clause as a basis of religious exemptions from law for individuals and religious institutions, the radicalism of Hobby Lobby involves extending this freedom to for-profit corporations.

The Corporate and Right-Wing Takeover of Rights Discourse

IN 2015 JOHN C. Coates IV, a professor of law and economics at Harvard, posted a study demonstrating empirically what was obvious to any newspaper-reading citizen: “Corporations have increasingly [and with growing speed] displaced individuals as direct beneficiaries of First Amendment rights.”9 Coates portrayed the development as not only “bad law and bad politics”—risking “the loss of a republican form of government”—but also “bad for business and society” insofar as it “reflected a form of socially wasteful rent seeking: the use of legal tools by business managers . . . to entrench reregulation in their personal interests at the expense of shareholders, consumers and employees.”10 Other law scholars have offered convergent accounts. “Once the patron saint of protesters and the disenfranchised,” Tim Wu opined in the New York Times, “the First Amendment has become the darling of economic libertarians and corporate lawyers who have recognized its power to immunize private enterprise from legal restraint.”11 According to Burt Neuborne, the trend emerged in the 1970s and 1980s because “robust free-speech protection fit neatly into the right’s skeptical, deregulatory approach to government generally, and because it encouraged vigorous transmission by powerful speakers of the right’s newly energized collection of ideas.”12 In addition to empowering corporations to dominate the electoral process, as the infamous Citizens United decision did, the extension of free speech rights to corporations has been especially useful to the pharmaceutical, tobacco, coal, industrial meat, and airline industries in challenging advertising restrictions.13

Certainly Hobby Lobby fits this pattern, but it is not fully comprehended by it. Unexplained is the shift from backing neoliberal to Christian conservative aims, from a jurisprudence aimed at enhancing the economic power of corporations through First Amendment rights to one that facilitates a political-religious project at best orthogonal to capital value or market positioning. Thus we need a deeper analysis of neoliberal jurisprudence than one identifying neoliberalism only with enhancing corporate power and profitability.

Jurisprudence of Aggrieved Power

THIS CASE COULD also be read as empowering traditional family values against a tide of ever more inclusionary, egalitarian, and sexually permissive state policies and social practices. It secures the right to enact these values both through a strategic libertarianism (strategic because these older mores are anything but) and a strategic separation of persons from acts. Not the homosexual but same-sex marriage is rejected by the baker who won’t make a cake for the occasion, just as it is not the employee but the birth control method against which Hobby Lobby seeks to discriminate.

There is another strategic reversal here, one that challenges conventional ordinances of power and powerlessness, mainstream and margin, dominant and subordinate, as conservative Christians represent themselves in need of exemptions to laws or practices embraced by the majority and codified in law. In what Jackson calls “a jurisprudence of aggrieved power,” the assertion of conscience is central in performatively producing the claimants as a beleaguered minority requiring protection from the state and a popular majority.14 Equally central to this inversion is the decision’s averted gaze from women’s unique vulnerability in a gendered division of labor in which women lack control over their sexual and reproductive existence. Only by framing the problem, as the Majority Opinion does, as an issue of religious conscience rather than gender equality can the power securing women’s subordination appear beleaguered, minoritarian, and hence in need of constitutional protection.

Citizens United, which granted American corporations the unrestricted right to fund political campaigns through Super PACs, performs similar inversions and omissions. There Justice Anthony Kennedy wrote of corporate voices historically “muffled” or censored by government regulations, rendering them akin to a “disadvantaged person or class” deprived of the right “to use speech to strive to establish [their] worth, standing and respect.”15 Categories aimed at securing equality and nondiscrimination are thus not only flipped but swirled in a strange brew of antistatism and moral authoritarianism to produce a novel class of the excluded: megacorporations and the white small business and working-class Christians whom those corporations so often mow down or exploit. This, of course, has been precisely the unholy alliance at the heart of the Republican Party for the past thirty-five years.

Antifeminist Backlash

A RELATED FRAME in which Hobby Lobby may be placed is a half-century-long pitched battle over reproductive freedom, especially abortion, in the United States, one that continually proliferates new tactics and strategies as it moves between Congress, the courts, and the streets; between state and federal laws and funding sources; between clinics and schools; and between municipal and national political organizations. Hobby Lobby belongs to this history in two ways.

First, just as the 1980 Harris v. McRae decision up...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Introduction
• Places
• Membership
• Religion
• Performance
• List of Contributors
• Index