How the Justices Reached their Decision in Hobby Lobby

Pro-choice voters are understandably aghast at the Supreme Court’s decision in Hobby Lobby. They cannot fathom how the justices would deprive workers the right to seek medical attention from licensed medical practitioners for procedures that are protected by the US Constitution and approved by the Court. However reprehensible the justices’ decision, it does enjoy legal precedent. That precedent is grounded in the legal separation of private enterprise from public policy. In short, the public cannot compel a private enterprise — a private household — to act in a manner if failure to act in that manner does not break the law. However, only if the United States required or forbid sexual reproduction could the Court compel individuals to use birth control or not use birth control. Since it has done neither, it is within the right of a private individual to forbid the use of birth control in their own home, i.e., their private enterprise.


The question therefore revolves around whether a private business is an extension of the private household. Or is the private enterprise instead an extension of the public sphere?

Up through the 1910s and arguably through the 1920s, the Court consistently held that the private enterprise was an extension of the household. This was the basis for the justices’ refusal to issue rulings abolishing child labor. It was also the basis for the justices’ refusal to issue rulings abolishing sex, race, religious, ethnic, and other forms of discrimination in private businesses. The same legal justification was advanced to prevent public school integration. Since the local public school is an extension of the private households in any school district, and since any of these households has the right to refuse any person entry into his or her private household, it stands to reason that a local public school can refuse entry to any person seeking entry. This legal argument failed because in the court’s opinion, the public school is, well — a public institution. And, yet, clearly, even today and increasingly, private households exercise tremendous power over the shape of their public schools — to the extreme detriment of students and of the public at large I believe.

This separation of public from private is crucial. It forms one of the critical underlying legal arguments in our campaign to keep the public out of our bedrooms, out of our email, and off our private internet connections.

So the main issue here is whether a private enterprise — an oikonomia — can be exempted from having to comply with clearly articulated and established public policy, such as a family’s right to exercise reproductive choice. Curiously, the US has already ruled on this matter and its ruling is at odds with the recent spate of rulings by the current Supreme Court. Time and again, the court has ruled that the State holds a monopoly on issuing, withholding, and annulling papers of incorporation, depending on whether the parties seeking to incorporate serve or do not serve the public interest. Indeed, public interest forms the legal foundation for issuing or withholding papers of incorporation. Thus, at least in this respect, the US has held that private enterprises must comply with public policy. And, in fact, such is the very legal foundation for the enforcement of worker safety, minimum wage, anti-discrimination law, child labor law, and so on.

In Hobby Lobby, the Court has not simply ruled on contraception. It has, in effect, issued a ruling that may well impact business law cases extending as far back as 1865, when the Confederacy declared its allegiance to the inviolability of the private enterprise. But why stop there? For clearly the conflict between the federalists and anti-federalists in 1787, which the federalists won outright by creating a strong federal government in the US Constitution, has never sat well with the opponents of federalism, and not merely with those opponents who formed the Confederacy in 1865.

I have long argued in this blog that this Supreme Court has no special commitment to the US Constitution; that its real commitments rest with a Thomistic theological system embraced by most but hardly by all Roman Catholics, and with a Straussian political philosophy that holds democratic process in contempt. With this latest spate of rulings, the Court has pushed the US one step closer to the post-Democratic and anti-Republican nation the framers fought to prevent.

The Neoliberal Theological Education

Back in the day when the Graduate Theological Union was emerging as a consortium, first of three, then five, and finally nine seminaries, the sky was the limit. And to anyone who doubted that fact there was the GTU Library, made up of the combined holdings of these seminaries, plus the holdings of the Jewish, Orthodox, Buddhist, and Islamic centers; in short, the largest collection of interreligious research material in the world. But then there was the Flora Lamson Hewlett Library, the library endowed largely by Flora and her husband William.

When I was a seminarian back in the 1980s, I worked at the library as a Serials librarian to help pay the bills. Upon returning to Berkeley in 1996 following my doctoral studies in Chicago my first real job upon my return was as Assistant to the President of the GTU, Glenn Bucher, liaison to the Board of Presidents, and joint coordinator of ATS-WASC accreditation. No one in 1998 could deny the overwhelming challenges facing the GTU back then. It was not the “bricks and mortar” that posed a problem; any number of Silicon Valley scions with spiritual interests were more than willing to pony up buckets overflowing with stock options if it meant seeing their names on buildings. The problem was getting these same revenue streams to contribute anything more than lip service to flesh and blood, faculty and students. (The exception here were donors to the Arts and Religion program, a legacy of the wonderful Jane Dillenberger, since endowing this program, by definition, was about flesh and blood, and color, and texture, and shadow. . . .) The GTU fielded one of the most expensive programs in the nation, in real dollars, not only because living in the Bay Area proved so much more expensive than living in the neighborhoods of other similar seminaries, but also because Princeton, Yale, Harvard, and Chicago provided tuition waivers and housing to entering graduate students, and handsome salaries and virtually free housing to faculty.

We already knew all of this back in 1998. We knew we needed to focus our attention on faculty and students, not on buildings. An example. When a property just west of the central campus came up for sale in the late 1990s, featuring five sturdy 2000 square foot duplexes arranged horse-shoe around a verdant meadow, the GTU to my knowledge did not even consider purchasing the property, which in 1999 was going for less than $1M; yes, less than $1M for all ten units. Purchase of the plot would have provided dirt-cheap housing for ten faculty members and their families. By 1999, however, the GTU board, now under the fiscally conservative leadership of the late John Dillenberger, was already in cost-cutting mode; cut staff, cut faculty, cut services, cut . . . cut . . . cut. Never mind the universal recommendation of our ATS-WASC review, which warned a rocky future for the GTU unless it directed more of its resources to faculty and students at its member institutions.

What we were witnessing at the GTU was the full boar metastasis of the neoliberal theological education driven by board members, presidents, and donors who read far too little Jürgen Moltmann and Dorthee Sölle and far too much Milton Friedman and Wall Street Journal.
I am bringing this up again thanks to my friend and former professor Rebecca Lyman’s posting of news from the tragedy unfolding at Episcopal Divinity School (EDS). I am not privy to the details of this conflict beyond what was reported in the news. And, yet, remarks by the President and from the consultants she hired to plan for the future at EDS remind me a great deal of discussions circulating around the GTU in the 1990s.

Faculty are “trying to unravel the consultation and delay our going forward,” said the Very Rev. James Kowalski, chair of the EDS board of trustees and dean of the Cathedral of St. John the Divine in New York City. Consultants will not interview faculty and others this summer.

The Very Rev. Kowalski might just as well have said that the “faculty are trying to ensure that theological education has a chair at the table.”

Faculty were introduced to the board-hired consultants and then dismissed. The board then counted the “meet-and-greet” as “consultation.”

Those interviews were to be “the heart and soul of beginning seriously to engage the whole community and its various stakeholders in this question about sustainability,” Dean Kowalski said. “What’s our next step? We’re not sure.”

But just what does Dean Kowalski mean precisely by “sustainability”? We could wish that what it meant was that the Dean is determined to bring the draw rate on the EDS endowment to 5 per cent and protecting the integrity and expanding the quality of EDS instruction. We could wish that Dean Kowalski did not see these two as a zero-sum game. Yet, if this is what Dean Kowalski meant, then it flies in the face of the board’s decision to eliminate tenure for its announced opening in History. How do you bring the draw down to 5 per cent? You sacrifice the independence, integrity, and quality of future faculty appointments. That’s how.

Although trained as a Church Historian, I have now been teaching in the Economics Faculty at the University of California, Berkeley, for several years. And I can tell you that most seminary boards are composed in such a manner as to ensure the death of the institutions they are charged to oversee. That is because when they sit in closed session in the board room these board members begin to channel the bankrupt rules of thumb of the worst kind of neoliberal economic theory. Believe me, I have been there. And there is not a one neo-Keynesian in the room.

This contrasts to the board room of the 1960s when the GTU was born. In the 1960s anyone espousing notions remotely similar to Milton Friedman’s neoliberal policies would have been expelled from the board room. Everything was growth, expansion — the future drawing the present towards its immanent realization. Obviously, this, too, was poppy-cock. Unending growth is unsustainable in a world composed of material being. But the error in such thinking is that, like neoliberalism, it takes its bearings from the independent variable, economic well-being.

And that is the wrong variable for theological educators to peg their institutional policies. Yes, bring the draw from 7 per cent down to 5. But if, in order to do so, you need to sacrifice the core of theological instruction (which is what the elimination of tenure amounts to), then you do not have a right to sit at the table. Clearly, in that case you need other minds at the table whose stake falls closer to the theological core; and that means faculty.

Educational administration and finance is an admittedly hard nut to crack. The right mix of tuition, endowment, costs, taxes and depreciation is never easy to hit right on the mark. But never ever in that mix ought boards to include the elimination of tenure, the sacrifice of program, or tuitions that are so burdensome as to deprive theological education a diversity that reflects that of society (and not simply the church). Should they include any of these components, this is prima facie evidence that the board is hostile to the overall mission of theological education. Better to share the costs of a full-time tenured faculty member with other institutions than to eliminate tenure or eliminate faculty. Better to purchase those ten units at the bargain basement price of $1M. But board members who have grown too comfortable with neoliberal thinking have also grown too lazy to think creatively about its future.

But from the sound of things at EDS, the nail is already in the coffin. The President and board are on the same page. They are determined to save the institution by killing it, which is the essence of neoliberalism. And all the faculty can do is sit and watch and eventually pack their bags and leave; or they can resist, which is what the GTU faculty should have done, but failed to do back in the 1990s when it still could have made a difference. Obviously it is also in the interests of the faculty to reduce the draw rate; but not if doing so sacrifices the mission of EDS.

Pericles in Iraq

There is a passage in Thucydides’ Peloponnesian War, Book II, §§60-63, in which Pericles defends his war policy. In most respects it is an unremarkable speech. The fact that it found on Pericles’ lips is unremarkable. It could be Lyndon Baines Johnson, or Richard Milhous Nixon, or Ronald Reagan, or George Bush, or — now — Barrack Hussein Obama. We are all familiar with the speech. Sons, fathers, uncles, brothers have been returning home in body bags. The wages of war are everywhere. Disease, unsanitary conditions, fear, despair. And, so, quite understandably the families whose loved ones are dying begin to question the wisdom of war. And so Pericles steps up and addresses his detractors:

I expected this outbreak of anger on your part against me, since I understand the reasons for it; and I have called an assembly with this object in view, to remind you of your previous resolutions and to put forward my own case against you, if we find that there is anything unreasonable in your anger against me and in your giving way to your misfortunes. . . . As for me, I am the same as I was, and do not alter; it is you who have changed. What has happened is this: you took my advice when you were still untouched by misfortune, and repented of your action when things went badly with you; it is because your own resolution is weak that my policy appears to you to be mistaken. . . . And do not imagine that what we are fighting for is simply the question of freedom or slavery: there is also involved the loss of our empire and the dangers arising from the hatred which we have incurred in administering it. Nor is it any longer possible for you to give up this empire, though there may be some people who in a mood of sudden panic and in a spirit of political apathy actually think that this would be a fine and noble thing to do. Your empire is now like a tyranny: it may have been wrong to take it; it is certainly dangerous to let it go (1974:158-161).

Among the multiple overlapping inconveniences of empire is the danger entailed by withdrawing garrisoned troops from conquered lands. Here, the Athenians alone seem to have been deluded into believing that the colonized appreciate the colonizers. Which is not to say that the conditions of the colonized changed dramatically with the arrival of Athenian troops. For the past three days, my sons and I spent time in Budva, Montenegro, a seaside resort now mostly occupied by Russian tourists and developers, less than two hundred kilometers north of Durrës, Albania, where the Peloponnesian War began. Then named Epidamnus, this city state was a colony of Corcyra (the present day island of Kerkira, just down the coast). Naturally enough, when the Epidamnians overthrew their aristocratic rulers and declared themselves a democracy, they anticipated that fellow democrat, Pericles, down in Athens, would be overjoyed. Instead, Pericles took sides with the ousted aristocrats, compelling the Epidamnians to seek assistance from Sparta’s ally, Corinth. And so the war began.

In all likelihood, the Epidamnians were no worse under Athenian occupation than under Corcyrian occupation. Occupation is occupation. War is war. Yet, among the conceits the Athenians entertained was that the peoples subject to Athenian occupation actually preferred occupation by the free people of Athens than subjection under their own oligarchs. And we know exactly why they entertained this conceit. Pericles himself had cultivated it in his many speeches praising the Athenians for their emancipatory mission throughout the Pelopponese. Was Pericles himself deluded? Of course not. And here Thucydides gives us a rare glimpse at the cynicism that bristles within every imperial ruler. Pericles knew quite well that the moment Athens withdrew her (meaning Athena’s) troops, all hell would break lose. And he evidently also had some inkling that “it may have been wrong to take it,” meaning seizing Athens’ colonies. He even apparently knew that Athens itself was not a democracy, as he noisily proclaimed on many occasions, but a tyranny.

A headline in today’s New York Times reads “Obama Finds He Cannot Put Iraq War Behind Him.” No, he cannot. And no one doubts, I hope, that when Obama refuses to send more troops into Iraq the Republicans in Congress will have a field day blaming him for losing the war that they had won. “It may have been wrong to take it; it is certainly dangerous to let it go.” Yet, let it go he must. Just as the US must commit itself to closing down and withdrawing its troops from all of its outposts around the world. Dangerous? Yes. But the greatest danger will not come from the peoples in the nations the US currently occupies. It will come from the people back home, who ever since the 1980s have been noisily fed the self-contradictory lie, Memorial Day after Memorial Day, both that “they” invited us to preserve “their freedom,” and that the reason we are “over there” is to prevent “them” from coming “over here.” Clearly these contradictory justifications for unlawful war and occupation cannot both be true.

And few photographs more clearly illustrate which of these statements is more true than Secretary Donald Rumsfeld’s shaking hands with Saddam Hussein.
Are we so naive as to believe that empires have no enemies or that they need not maintain defensive troops? No. But just as Pericles was ready to acknowledge that Athens had become a tyranny and that it was probably wrong for her to economically and militarily dominate her neighbors, so it is high time that Americans shed the illusion that the world cheers our military presence in their midst. It will be dangerous for us to withdraw, everywhere and anywhere, because we have won the wrath of the communities we occupy. But the real danger comes from those many Americans who have drunk the Kool Aid served them daily in our pay-for-service media by our pay-for-service political leaders. I hear them already decanting into the Republican Party.