Hobby Lobby, Corporate Law, and Unsustainable Liberalism

III. RELIGIOUS LIBERTY CABINED BY THE GROWTH IN THE "SECULAR STATE"? Any intelligible effort to define the proper relationship between government and religion is a thorny enterprise that has vexed jurists, clerics, and governments for centuries. (198) The idea of a truly secular society may emerge as a cultural artifact that surfaces in what Charles Taylor calls the "immanent frame." (199) Although the footings for this orientation may be provided by exclusive humanism, and while such a foundation may generate questions regarding the need for the sacred, (200) nevertheless, it remains questionable whether a truly secular society is possible. (201) Indeed, Remi Brague richly disputes the possibility of such a society, (202) and Strine declines to prove its existence. Nonetheless, Strine contends that the Hobby Lobby case, in combination with the Supreme Court's earlier decisions involving corporations, (203) improperly constricts government's capacity to extend the social safety net further. (204) Embarking on an effort to illustrate that "Hobby Lobby puts great pressure on corporate law itself," (205) he avers this pressure was not required by RFRA. (206) Presumably, Citizens United and Hobby Lobby combine to inflate the power of corporations through contestable interpretations of both the First Amendment and RFRA. Strine insists that such judicially cognized corporate resistance enables religious employers in particular to avoid the adverse effects of otherwise generally applicable social-progress law and thus poses an insidious threat to the nation's workers, the survival of the secular state, and responsible corporate law itself. (207) Presenting a fulsome parade of horribles, Strine reacts to this situation with resolute conviction. He asserts that the nation is unqualifiedly secular and accordingly must enforce secular principles. (208) This contention appears to be at variance with John Focke's conception of the state, (209) but it corresponds with Professor Farry Seidentop's question: have the people of 'the West,' inhabiting what some call the "post-Christian world," lost their moral bearings? (210) If Siedentop's question is answered affirmatively, it means that Americans, living in a nation wherein religious freedom was once of paramount importance, may "no longer have a persuasive story to tell ourselves about our origins and development." (211) Although such questions do not constitute an autopsy, it is possible that "[s]ome may welcome this condition, seeing it as liberation from historical myths such as the biblical story of human sin and redemption... [thus rendering the] Western narrative not only obsolete, but morally dubious." (212) Consistent with Siedentop's observations (but not his conclusions), (213) rather than being exercised by the importance of religious freedom, Strine is exercised by the prospect that "social progress" may be thwarted. Whether or not human and social progress is possible, (214) Strine repeatedly ties freedom to the elimination of necessity and human want. (215) Such contentions implicitly deny the notion of scarcity, a position held despite the fact that all of us, including employers and employees, have unmet needs. Apparently such claims are lubricated by allegations that private actors possess unwarranted market power, which surfaces when private individuals and entities pursue policies and private ordering that supplies benefits to them at the expense of the public interest. Although the reliability of market failure allegations remains debatable, it is manifest that Progressives, in responding to this hypothesis, have facilitated a rise in the size and scope of government, and accordingly, "the odds of escaping conflicts between religious groups and individuals on one hand and the state on the other are terribly low." (216) This remains true despite the fact that a quest for religious freedom motivated many of America's founders to seek protection for human liberty in the form of the Free Exercise Clause or other proposals. …