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July 08, 2014

Some Hobby Lobby Reflections -- No, The Science Does Not Matter

The owners of Hobby Lobby believe that four of the required methods of "birth control" are abortifacients because they have the potential (acknowledged by the manufacturers and the federal government) to prevent the implantation of a fertilized egg in the lining of the uterus -- which many Christians hold to be the destruction of a human life. The government argued that the drug was not an abortifacient because the government, and science generally, does not view pregnancy as beginning until after implantation. Some have therefore argued that the decision is anti-science because the religious belief in question contradicts the current scientific consensus.

Of course, this argument is nonsense. As Jonathan Adler notes over at the Volokh Conspiracy, the issue of the scientific validity of the religious belief is not relevant at all to the case -- as was acknowledged even by the dissenters in the case.

Let’s start with the law. When a religious individual or institution claims that a government policy impermissibly burdens the exercise of religion, the essential truth of the religious objector’s claim is not at issue. As Eugene helpfully explained in this post, “under RFRA, the question whether there is such a substantial burden should be based on the Hobby Lobby owners’ sincere judgment about what constitutes culpable complicity with sin, and not on the courts’ judgment.” This principle was accepted by all of the justices in Hobby Lobby. As Justice Ginsburg conceded in her dissent, courts must “accept as true” a RFRA plaintiff’s sincerely held religious beliefs and are not to question “the plausibility of a religious claim.” Rather, at issue in a RFRA case is whether the government policy at issue imposes a “substantial burden” on the plaintiff and, if so, whether the government can show a compelling interest in subjecting the plaintiff to the policy and that there is no less-restrictive alternative to meet the government’s interest.

I'd like to instead present a different example for consideration, one which even the most unreasonable opponent of the Hobby Lobby decision would have to acknowledge shows why the "it contradicts the science" standard is wrong.

Catholics hold to the doctrine of transubstantiation -- defined in Paragraph 1376 of the Catechism of the Catholic Church as follows:

1376 The Council of Trent summarizes the Catholic faith by declaring: "Because Christ our Redeemer said that it was truly his body that he was offering under the species of bread, it has always been the conviction of the Church of God, and this holy Council now declares again, that by the consecration of the bread and wine there takes place a change of the whole substance of the bread into the substance of the body of Christ our Lord and of the whole substance of the wine into the substance of his blood. This change the holy Catholic Church has fittingly and properly called transubstantiation."

But while the "substance" (used in the philosophical sense of the reality of a thing") is changed, the "accidents" (or appearance) of the bread and wine remain unchanged. Were a scientist to test the Eucharist after the consecration, they would find the same bread and wine as before. Thus the Catholic belief in transubstantiation is "anti-science".

Which leads us to these laws here in Texas.

Underage Drinking Laws

Minors who purchase, attempt to purchase, possess, or consume alcoholic beverages, as well as minors who are intoxicated in public or misrepresent their age to obtain alcoholic beverages, face the following consequences:

  • Class C misdemeanor, punishable by a fine up to $500
  • Alcohol awareness class
  • 8 to 40 hours community service
  • 30 to 180 days loss or denial of driver's license

If a minor is seventeen years of age or older and the violation is the third offense, the offense is punishable by a fine of $250 to $2,000, confinement in jail for up to 180 days or both, as well as automatic driver's license suspension.

A minor with previous alcohol-related convictions will have his or her driver's license suspended for one year if the minor does not attend alcohol awareness training that has been required by the judge.

Penalties for Providing Alcohol to a Minor


Adults and minors who give alcohol to a minor also face a stiff penalty. The punishment for making alcoholic beverages available to a minor is a class A misdemeanor, punishable by a fine up to $4,000, confinement in jail for up to a year, or both. Additionally, the violator will have his or her driver´s license automatically suspended for 180 days upon conviction.


Persons 21 or older (other than the parent or guardian) can be held liable for damages caused by intoxication of a minor under 18 if the adult knowingly provided alcoholic beverages to a minor or knowingly allowed the minor to be served or provided alcoholic beverages on the premises owned or leased by the adult.


Sale to a minor is a class A misdemeanor, punishable by a fine up to $4,000, confinement up to a year in jail, or both.

Zero Tolerance Law


In Texas it is illegal for a person under 21 to operate a motor vehicle in a public place while having ANY detectable amount of alcohol in their system. On September 1, 2009, this law was expanded to include watercraft in addition to motor vehicles.



  1. The consequences for the minor on the first offense of driving under the influence of alcohol:

    • Class C misdemeanor, punishable by a fine up to $500

    • Attendance at an alcohol awareness class

    • 20 to 40 hours of mandatory community service

    • 60 days driver's license suspension. The minor would not be eligible for an occupational license for the first 30 days.



  2. A second offense increases the consequences to:

    • Class C misdemeanor, punishable by a fine up to $500

    • Attendance at an alcohol awareness class at the judge's discretion

    • 40 to 60 hours of mandatory community service

    • 120 days driver's license suspension. The minor would not be eligible for an occupational license for the first 90 days.



  3. A third offense is not eligible for deferred adjudication. The minor's driver's license is suspended for 180 days and an occupational license may not be obtained for the entire suspension period. If the minor is 17 years of age or older, the fine increases to $500 to $2,000, confinement in jail for up to 180 days, or both.

Clearly we have a conflict here between science and belief. Would those who argue that the law must always side with the science therefore suggest that any individual under the age of 21 who received communion under both species ought to be subject to the penalties for underage consumption of an alcoholic beverage? Ought a priest, deacon, or Eucharistic minister who allows such an individual to partake from the chalice be prosecuted for supplying alcohol to a minor? Would it be a violation of religious liberty for the police to set up a checkpoint down the block from a Catholic church and flag down cars driven by those who appear under the age of 21 in order to check to make sure they are not blowing any detectable level of alcohol? After all, this would be the enforcement of laws of general application regarding an area of important public policy.

I suspect that most Americans -- even those who in the Hobby Lobby case argue that "belief should not trump science in free exercise cases" -- would find such practices repulsive and not the least restrictive means of accomplishing the compelling government interest of preventing underage consumption of alcohol. The burden on free exercise of religion is in such a case much too great to be viewed as anything other than a violation of the Religious Freedom Restoration Act -- and likely of the First Amendment itself (although perhaps not the latter, given Employment Division v. Smith).

So look at the situation that existed prior to Hobby Lobby. Regardless of whether or not science views the actions of the four medications in question as abortifacient, it is not unreasonable (nor even outside of the mainstream of Christianity) for the Green family to believe that it is in fact an abortifacient because of a different, theologically based, view of when human life begins. The question then becomes if the government's imposition of the mandate to provide those medications is the least restrictive means of ensuring access to them. Given the existence of the alternate method for providing them created for religious non-profit corporations, it is impossible to argue that the mandate is the least restrictive means of accomplishing the government's goal. It was therefore essential that the Supreme Court rule as it did in this case -- just as it would be for it to rule that enforcing the three provisions of Texas law cited above to prosecute individuals distributing or receiving Holly Communion would fall short of the least restrictive means of accomplishing the goals of the law.





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