My good friend Greg Horton has posted a response to the Hobby Lobby case that I found to be very good. His main purpose, as Greg usually does on his blog, is to discuss the role of language. In particular here he is discussing whether faith-talk can define medical categories like "pregnancy." He concludes, of course, that it cannot. Which leads him to conclude that "The Hobby Lobby decision is a hydra-headed clusterfuck." Amen.
Two parts of this post also get to issues that I had with the majority decision, but haven't written about yet, as I also didn't want to jump into the fray before but wanted to read, listen, and mull things over. Here is issue one, as described by Greg:
To be clear, the case rested on the Green family being allowed to define pregnancy in a way that is counter to how medical professionals define pregnancy. I have no idea why I should take the word of business owners who specialize in selling imported crap for display in middle class homes around evangelicaldom when the American Medical Association seems a far more reliable source of information about medicine, but it's America, and as my students regularly inform me with scalable—depending on their level of offense at my cultural blasphemy—levels of indignation, "Everyone has a right to their own opinion."
In reading the majority decision I was horrified by the line of Justice Alito's that the court was protecting the Green family's belief that four of these contraception methods were abortifacients. Despite the fact that the scientific and medical communities, including the FDA, don't categorize them as such. Justice Ginsburg was shocked that the Court now will be adjudicating religious beliefs in a way it never has before, determining if they are sincerely held in order to apply this ruling in other cases. It is, of course, shocking that the Court is protecting a claim that is empirically false. I'm not sure how an empirically false medical claim becomes a religious belief, but it did on Tuesday. And that is Greg's problem, as he concludes his post:
Faith in god does not imply the ability to define non-theological terms, like pregnancy, so that they are consistent with a particular brand of theism. The object of faith is not definitions or meanings that are only tangentially related to words in a sacred text; the object of faith is god. This will necessitate that theists believe certain things are true or false, but extracting categories from the text and then insisting testable truths be understood in light of those categories is not helpful in communicating with members of various tribes who do not share those categories. Pregnant means, for all tribes, a fertilized egg is implanted in the wall of the uterus. To equate faith with the belief in definitions that are contrary to known scientific realities is to impose an anti-intellectual burden on believers that makes meaningful, intertribal communication impossible.
The second big issue I had with the ruling, is also something Greg addresses tangentially.
That the SCOTUS majority opinion specifically said the decision could not be used for precedential purposes related to blood transfusions and other medical realities about which different faith traditions have differing beliefs is a strong indication that they know this was a perilously bad decision. Either the principle applies or it doesn't, and in this case, they treated a comprehensive application of principle as an ad hoc application of principle, but the box is still open and the five justices in the majority will be living with their decision in the form of litigation for years to come.
First, as a practical matter, you cannot claim that the ruling is not a precedent, for clearly lower court judges will be compelled to use it as a precedent when adjudicating similar cases.
Second, the ruling defies the laws of logic that most people learn as an undergraduate in college. According to those laws it is the basic form of the argument that is valid, regardless of what the particulars are. The particulars in this case had to do with contraception coverage under the Affordable Care Act. But if the argument itself is valid, then you can change that particulars and get the same conclusion. That the Court in point of fact says that the form of argument is not valid when applied to other particulars entails that it is not valid when applied to this particular. This part of ruling must be making every logicians head spin.
So, we'll be living with this "hydra-headed clusterfuck" for some time.