On The Scope of Religious Liberty

By Arpit Chauhan

There’s some interesting back-and-forth going on between liberal and conservative columnists on the extent to which religious freedom should be accorded to individuals and institutions. It’s all, of course, in the wake of the Hobby Lobby case in the Supreme Court, which has made many liberals openly question the legitimacy of the concept of religious liberty. They are against the claim that for-profit corporations should be provided religious exemptions and consider it as an “overly broad construal” of the Religious Freedom Restoration Act (RFRA).

Over at Slate, Emily Bazelon tried to argue for a qualified version of religious liberty. RFRA, she contends, was enacted by the Congress in response to the Employment Division v. Smith ruling in order to protect religious minorities; its invocation by powerful religious organizations only gives religious liberty a “bad name:”

At the time, the ruling read as insensitive to the lack of power religious minorities have relative to the majority. “In law school, I saw Smith as a conservative decision,” Brooklyn law professor Nelson Tebbe remembered when I called him this week. “And when Congress passed RFRA in response, it was about protecting potentially persecuted minorities. But now, in an amazing shift, it’s the most powerful religious organizations in the country that are invoking this law—the Catholic Church and Protestant evangelicals.”

For businesses, when religious freedom comes at a cost to employees or customers, it has to give. That’s the best way to interpret RFRA, and it’s also the best fit for the American tradition of tolerance. This is a country of live and let live. That’s how businesses as well as the government have to function. Hobby Lobby’s owners can object to forms of birth control personally while respecting the rights of their employees to receive it as a benefit. And if a state has the sense to outlaw discrimination on the basis of sexual orientation, then the owners of companies that are in the wedding business can steer clear of gay marriage on their own time, but when their doors are open to the public, then they serve whoever walks in. That’s what religious liberty has to mean in the end. Now let’s get there.

Her main objection is to “fundamentalists” using religious liberty as a shield against “modernity:”

 On these two fronts [same-sex marriage and Hobby Lobby case], religious liberty looks like a shield fundamentalists are throwing up against, well, sexual modernity. They’re not ready to accept same-sex marriage or sex without procreation, and they’re arguing that fundamentalist-owned businesses, as well as individuals and churches, shouldn’t have to.

Ross Douthat of The New York Times (rightly) vexed by her redefinition of religious liberty wrote a very well-argued response:

In a “defense” of religious liberty that’s basically written to reassure liberals that they can support something called religious freedom without conceding an inch to actual-existing dissenters from liberalism’s preferred legal and regulatory regime, Emily Bazelon offers a formulation that hints at why religious and ideological pluralism, so honored in theory, is often hard for people to get behind in practice.

If we take pluralism seriously, the whole point of the concept is to enable groups to “throw up a shield” against the pressure of consensus, and develop and promote alternatives that are rejected by the powerful, or by society as a whole. This is true when the consensus in question is old and rooted and traditional, but it’s also true when the consensus in question likes to describe itself as representing “modernity” (or “progress” or “enlightenment” or whatever loaded, whiggish word you prefer), because vanguard-of-history ideas no less than rooted-in-tradition ideas can turn out to be mistaken, misdirected, immoral, barbaric. (I shouldn’t need to rehearse all of the examples of thoroughly “modern” ideas from the 19th and 20th centuries that today’s liberals quite rightly find abhorrent.) And one of the advantages that pluralism offers to modern societies in particular is a kind of hedge against the progressive fallacy — a way for a culture rushing to embrace a new paradigm to concede, along the way, the possibility that it might be making a mistake, and that even capital-p Progress might benefit from having critics.

National Review’s Yuval Levin concurred with Douthat on this point:

As [Douthat] rightly notes, Bazelon’s article essentially attempts a redefinition of pluralism as a tool of progressive political action rather than a broad protection of the right to dissent. Pluralism is only legitimate, Bazelon suggests, when it is used by progressive dissenters to break the stranglehold of a traditionalist majority; when instead it is used by traditionalist dissenters to break the stranglehold of a progressive majority, it is illegitimate. It is a view of the right of conscience narrowed by its subservience to the progressive understanding of the nature of the liberal society—that is, to a view of history as defined by a series of breakthroughs in the struggle against ancient prejudice.

He also articulated the inherent danger in the progressive idea of “respecting” individuals’ right to believe what they want but disregarding their right to act on them through institutions:

…she wants to argue that while people’s freedom to believe whatever they want can be respected, their freedom to effectuate those beliefs through corporations they may own or other institutions they cooperate in does not deserve a similar protection or regard.

This line of argument is actually an extension of the same progressive vision as that which animates Bazelon’s larger point. It follows in a thread of the progressive intellectual tradition that we have seen resurgent in a big way of late: the argument that society really only consists of individuals and the government, and that the various institutions and power centers that lie between the two are inherently illegitimate and should either be seized or pushed aside when they get in the way of public-policy objectives…

This is obviously a line of thinking that’s very dangerous to the American idea of freedom and to all of our political rights, and it is especially problematic for religious liberty because it interprets the freedom of conscience to be entirely a matter of belief and not of action.

In a subsequent article, he goes yet deeper and contrasts conservatives’ view of societal evolution and individual liberty with the Whig theory of history (which suggests that society is marching “forward” and “progressing” towards greater individual liberation) embraced by progressives. Best words I have read in a lot of time:

[Liberals'] concerns seem moved by a sense that it is somehow hypocritical (or at least paradoxical) to appeal to human rights and civil rights to resist what they take to be the expansion of the orbit of individual liberty and to oppose the explosion of traditional beliefs and practices. The idea of religious liberty exists to protect people from subjection to oppressive dogma, they suggest, so it is therefore absurd for the partisans of what they deem oppressive religious dogma to claim protection behind such liberty…

It seems to me that many conservatives looking at the same pattern of facts react differently because we have a different understanding of the larger story of liberal democracy. We take the arrangement of rights and liberties at the core of the liberal-democratic understanding of society to exist in the service of sustaining the space in which society thrives, rather than of taking society “forward” and away from its roots. There is room in that space for different parts of society to sustain quite different ways of living, and room for people to debate our broader society’s social and political course – which can take different directions at different times in response to different circumstances. Liberty is not the yearned-for endpoint of that story, when we will be free at last from the burdens of the past. Liberty is what exists in that space now, what allows for different people (and groups of people) to pursue different paths and debate different options, and what allows society to address its problems in various ways as they arise. Liberty is not what we’re progressing toward but what we are conserving. It is a means to social, moral, and material progress, but the shape of that progress is itself defined and debated in a dynamic, incremental, and ongoing way in that space in which society lives, rather than existing as an ideal of social justice understood as individual moral liberation and standing always as the criteria against which everything society does must be tested.

Needless to say, I overwhelmingly agree with Douthat and Levin, here. A truly pluralistic society needs to defend the individual liberty of not just minorities, but also that of people who find themselves in disagreement with the over-confident progressive consensus. And, as I argued in my previous post, the freedom of contract that the Hobby Lobby owners want is essential to liberty, not antithetical to it.

Note: The conversation isn’t over yet! Emily will very likely respond in coming days. I’ll update this post, accordingly.

Update: Emily responded and linked to my post. One of her arguments is that corporations should not be allowed to “trump” other’s rights. I’ve addressed that here. 

Feel free to comment and add to the conversation!

 

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Why Liberals are Wrong on Hobby Lobby and Religious Freedom

By Arpit Chauhan

The US Supreme Court agreed to review Sebelius v. Hobby Lobby, a landmark case that challenges provisions in Obamacare requiring employers to offer insurance coverage for birth control. The owners of Hobby Lobby believe that life begins at conception and have objections to providing coverage for so-called “abortifacients.” Complying with the birth-control mandate would either violate their beliefs or subject them to millions of dollars in fines.

As you might expect, the left is trumping up misleading narratives about the case. For instance:

No, women’s rights are not being “trumped.” The women employees of Hobby Lobby are voluntarily choosing to work there and sign a contract that says that they won’t get certain kinds of health insurance. Contrary to how the left portrays it, this is essential to individual freedom, not antithetical to it. Having true freedom requires that one have the right to bind oneself in various ways by entering into contracts with others or modify one’s behavior in order to gain something which isn’t originally one’s.

We grasp this. For example, all citizens have a right to bear arms. But some public businesses do not allow people who are carrying guns to enter. And, that isn’t thought of as the business owner “imposing his beliefs on others” or “trumping others’ rights.” That’s because we value private ownership. The Second Amendment guarantees our right to carry a handgun, but not the right to enter someone else’s property. The owner of a property or public business is the sole arbiter of who is allowed to enter it. He is free to prevent others from entering it for any reason he deems fit (except some.)

The same rationale applies to free speech issues. Recently, A&E fired Duck Dynasty’s Phil Robertson for his comments about gay rights in the GQ magazine. Did A&E’s CEO trump Phil’s right to free speech? Absolutely not. Phil has a right to free speech, but not one to be perpetually employed by a private company. Freedom entails Phil’s right to say whatever he wants, and also his employer’s right to terminate him when he pleases to (as long as he does not violate the contract he is bound by.)

Similarly, when Hobby Lobby offers a job on some terms, it is not violating anyone’s “right” to a job at some different terms, the simple reason being that no one is entitled to a job there. If someone does not like the terms, he should not accept them and work somewhere else! The government should not coerce someone to employ others at terms that he does not accept. To let it do so violates a fundamental freedom of individuals and corporations: the freedom of contract.

Some warn that letting Hobby Lobby refrain from offering birth control insurance will result in a slippery slope. What if some employer does not want to offer insurance for cancer? The answer’s simple: almost no one would want to work for such an employer. Consumers might also choose to boycott it. Thus, the employer would be forced to re-evaluate his decision. If, however, he has a strong objection with offering cancer insurance, he can continue doing so and operate his not-so-stellar business. Thus, everyone ends up being free.

Still others contend that arming the government with a power to govern the terms of contracts between citizens is good for utilitarian reasons — “let the government prohibit terms that we don’t like and we would all be better off.” But, that’s a mistaken view of morality. People have varying conceptions of what’s good for them based on their moral beliefs. They should be allowed to live their lives according to their own values, and not be forced to adhere to the ones that the government decides to be “right.” And, even if exceptions are carved out to this general rule (like minimum wage requirements), that is what they should remain — exceptions, not the norm.

As I see it, at stake in this case is not just contraception coverage, but whether individuals can operate a business without being required to violate their conscience. I hope the Supreme Court rules in favor of Hobby Lobby.

If you have anything to say, feel free to comment!

Note: I make a moral argument in this post, instead of presenting a legal case that takes complications of US law into account. For extended legal arguments, refer amicus curiae briefs filed by various organizations, particularly the one by Cato Institute. 

Note 2: I asked Cato Institute’s Ilya Shapiro on what he thinks about the likelihood of Hobby Lobby winning. He’s optimistic:

Update 1: The Supreme Court heard oral arguments on March 25. Here’s the transcript. According to a POLITICO report, the Justices were skeptical of White House’s position!

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