Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

The Ethical Conflict Underlying the Disagreements Over the Hobby Lobby Ruling

Jason E. Summers


By Jason E. Summers

July 21, 2014

Although discussing politics on Facebook can be perilous, I’ve found more illumination than aggravation in the wake of the Hobby Lobby decision—particularly with respect to understanding the ethical issues underlying our disagreements. At root, the issue is not a conflict between a religiously motivated prohibition (deontology) and a rational process that seeks the greatest good for the most people (utilitarianism), but rather a conflict between two competing deontologies that our common utilitarian moral language is too thin to bridge.

One line of dissenting argument suggests that Hobby Lobby represents a class of employers driven by a religious prohibition to deprive a significant group of women of a manifest good—an immoral privileging of the views of a few over the rights of the many. Moreover—a variant continues—the end result of the decision is provision of contraceptives by another means, which makes the ethical stance of Hobby Lobby specious on consequentialist grounds. As my dissenting interlocutor wrote, 

I'm not too sympathetic to the idea that the Hobby Lobbys of the world are tainted by acting as a conduit through which contraceptive money flows. It doesn't strike me as all that different from paying taxes that will be used to pay for things…one might have strong moral objections to. 

Another, acknowledging “the cooperation [in an act believed to be immoral] is slightly more direct in one scenario than the other,” ultimately averred that it was “a pretty fine distinction.”

But such ethical distinctions between direct and indirect are among the most consistently held. This is demonstrated by the trolley and footbridge dilemmas, which pose two scenarios with differing paths to equivalent outcomes: one person dies to save many. In the trolley dilemma, a switch is thrown, rerouting a run-away trolley toward the track with one person rather than many. In the footbridge dilemma, a large man is pushed from a bridge onto the track to halt the trolley. The great majority of people reject the direct action of pushing the large man to his death but accept the indirect action of pulling the lever.

The Supreme Court, by acknowledging an ethical distinction between an organization directly providing certain forms of contraception and an organization participating in a political community in which government does the same, is following a well-worn line of thinking—not unlike the familiar distinction between conscientious objectors who refuse to participate in war but pay taxes and tax protesters who withhold taxes to avoid supporting the war activities of government. 

Nonetheless, our common utilitarian moral language does not consistently support this view. The distinction, though a fundamental one, is an emotive one?a rationalization of a visceral response. This emotional basis for deontology was postulated by Jonathan Haidt and supported by neuroimaging studies by Joshua Greene and Jonathan Cohen that found differentiated activations of neural regions associated with cognition and emotion for the trolley and footbridge scenarios. 

From this perspective, the Hobby Lobby decision is an ethical failure that privileges the disgust of the business owners over the greater need to provide no-cost contraceptive services to a much larger number of women. But this analysis fails on its own consequentialist grounds because provision of contraceptives can be effected through alternative means. Such alternative provision recognizes and protects distinct ethical views while ensuring that government compelling interests are upheld, thereby achieving the utilitarian goal of providing the greatest good for the most people.

What then is the objection of dissenters if it cannot be a consequentialist or utilitarian one? The obstacle that remains is, in fact, another deontology: fairness. Commendably, ours is a society in which the concept of directly perpetrating an act that favors one group over another is regarded with disgust. This leads to a deontological morality that demands identical treatment and chafes at a business being afforded what are seen as special privileges. While the impetus is commendable, the outcome of this is problematic. As deontological reasoning leads to the death of many in the footbridge dilemma, a deontology of fairness sacrifices protection of genuine pluralism to a rule that falsely equates equal treatment with identical treatment.

Moving forward with this national debate will require a shared moral vision that accounts for the common good in the face of deontological disagreements. I am optimistic that we can find such a consensus. But, as the response to this Supreme Court ruling has shown, a common language of utilitarianism is not thick enough of a social consensus to bridge conflicting moral views of the world.

- Jason E. Summers is Chief Scientist of Applied Research in Acoustics LLC. His avocational interest in ethics does not end where his paid work begins. Nonetheless, the views expressed here are those of the author alone.

“To respond to the author of this Commentary please email:
Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”