Why Liberals are Wrong on Hobby Lobby and Religious Freedom

The Supreme Court agreed to review Sebelius v. Hobby Lobby, a landmark case that challenges provisions in Obamacare that require employers to offer insurance coverage for birth control. The owners of Hobby Lobby believe that life begins at conception and thus 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, this 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.

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. 


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!

Update 2: The Supreme Court decided the case (now called Burwell v Hobby Lobby Stores, Inc.) 5-4 in favor of Hobby Lobby! Justice Alito, in the majority opinion, wrote that

1. RFRA applies to closely-held for-profit corporations

2. HHS’ contraception mandate “substantially burdens” the exercise of religion

3. Even if it is assumed that the government has a compelling interest in offering cost-free access to contraception, it has failed to show that it is using the “least restrictive means” of furthering that interest.


A Response to Sam Harris’ health-morality analogy

Sam Harris speaking in 2010
Sam Harris speaking in 2010


Sam Harris, one of the four “horsemen” of New Atheism, published a book delineating his position on moral realism (whether objective moral values exist and how can we know them). Its central claim is that being moral entails trying to maximize the aggregate “well-being” of sentient beings. So, claims about the morality of actions reduce to statements about how those actions affect the mental states of creatures, and thus can be verified scientifically.

His work has been reviewed and critiqued quite well by academics across fields including philosophers Russell Blackford, Massimo PigliucciThomas Nagel and physicist Sean Carroll. The general opinion seems to be that he unsuccessfully tries to derive an ought from an is, and defines “science” too broadly in order to justify an attractive subtitle for his book (“How Science can Determine Human Values.”) I have already written about naturalists’ attempts to ground morality, and thus will not attempt to point out all the flaws in Harris’ line-of-reasoning. Instead, I would like to focus on a novel analogy he provides between the science of medicine and an objective system of morality.

Harris was rightly criticized by several reviewers for basing his allegedly scientific system of morality on a premise (“we should value well-being of conscious creatures”) that isn’t scientifically justifiable. Even though a system of “prescriptive” morality can be formed with the help of science once we accept this premise, he seemed to provide no basis for justifying the premise itself apart from labeling those who don’t affirm it as absurd and irrational. He chose to respond to such criticism in the following manner:

It seems to me that there are three, distinct challenges put forward thus far:

1. There is no scientific basis to say that we should value well-being, our own or anyone else’s. (The Value Problem)

2. Hence, if someone does not care about well-being, or cares only about his own and not about the well-being of others, there is no way to argue that he is wrong from the point of view of science. (The Persuasion Problem)

3. Even if we did agree to grant “well-being” primacy in any discussion of morality, it is difficult or impossible to define it with rigor. It is, therefore, impossible to measure well-being scientifically. Thus, there can be no science of morality. (The Measurement Problem)

I believe all of these challenges are the product of philosophical confusion. The simplest way to see this is by analogy to medicine and the mysterious quantity we call “health.” Let’s swap “morality” for “medicine” and “well-being” for “health” and see how things look:

1. There is no scientific basis to say that we should value health, our own or anyone else’s. (The Value Problem)

2. Hence, if someone does not care about health, or cares only about his own and not about the health of others, there is no way to argue that he is wrong from the point of view of science. (The Persuasion Problem)

3. Even if we did agree to grant “health” primacy in any discussion of medicine, it is difficult or impossible to define it with rigor. It is, therefore, impossible to measure health scientifically. Thus, there can be no science of medicine. (The Measurement Problem)

I think his response to the third point is good enough. His main point, however, is that since we have no qualms with there being a science of medicine focused on helping people with certain widely shared values (preference for longevity, being free from diseases etc.), we shouldn’t have any with a “science of morality” based on universal values either. There is a gaping flaw in this bit of reasoning. Yes, one can perfectly well develop a budding “science of morality” in this fashion. But, that system won’t be binding, and that would make it totally unworthy of being called a system of morality.† The fact that most people share some basic values, and thus can form a system of medicine based on them is just a matter of convenience, nothing else, much like soccer fans agreeing to form FIFA and supporting the game. No one is obligated (and shouldn’t be) to accept the recommendations of that system, if he/she doesn’t accept the values that undergird it. If you don’t prefer longevity, you can ignore suggestions about how to live longer. In fact, you can and do make your own value judgements about your health. Weighing the side-effects of a pain reliever against the short-term relief is your decision. Of course, we know that people tend to agree, by and large, on what they value about health and that allows doctors to make general recommendations based on universal albeit subjective values. That’s perfectly fine for a system of medicine. But not for one of morality because it’s not enough for its foundational premises to be universal. They need to be objectively true.†† Carroll expresses this quite well in his review of Harris’ book:

…Can we not even imagine people with fundamentally incompatible views of the good?  (I think I can.)  And if we can, what is the reason for the cosmic accident that we all happen to agree?  And if that happy cosmic accident exists, it’s still merely an empirical fact; by itself, the existence of universal agreement on what is good doesn’t necessarily imply that it is good.  We could all be mistaken, after all.

Our system of medicine makes claims of the sorts, “If you value living longer, don’t smoke.” It does not say that you ought to value living longer, but it tells those who do what to do to achieve that end. On the contrary, morality is not about making “ought” statements contingent on a person’s wishes or values. Rather, it’s about claiming what people ought to value regardless of what they already happen to value. For every statement like “if you value seeing other people happy, donate to a charity” there can be an analogous statement “if you value killing people, purchase a grenade and drop it in a mall.” Any meaningful system of morality needs to tell us why valuing other people’s happiness is objectively better (or worse) than valuing killing people, instead of just making recommendations about how to fulfill our already held values to a maximum. “Oughts” of the sort, “if you value X, you ought to do Y” simply aren’t valuable in answering questions about morality.

One of the main challenges of metaethics and moral philosophy is about trying to find out what is the proper conception of “good.” Once that’s established, finding out ways to maximize that “good” is, I dare say, comparatively trivial. If Harris really wants to make a case for moral realism, for why some people’s conception of morality is wrong, he needs to tell us why his conception is correct. It is not enough for his “science” of morality to prescribe how to maximize aggregate well-being. It needs to tell us why that is the proper goal of morality.

† Consider this: two persons build two different sciences of morality: science of morality A whose aim is to maximize aggregate well-being of sentient creatures, and science of morality B whose aim is to maximize some other variable X, let’s say a particular person’s well-being (it’s not hard to think of many such variables). The big question still remains: prescriptions of which science A or B should you follow?

†† Many people who defend Sam’s analogy assert “just like there can be objective claims about health, there can be objective claims about morality.” There is a genuine confusion underlying it. The term health is analogous to well-being, rather than “morality.” The analogous (and correct) assertion is “there can be objective claims about well-being of sentient creatures,” which is irrelevant to a discussion about morality because a claim about well-being isn’t a moral claim per se.

The photo of Sam Harris belongs to Steve Jurvetson and is used under CC BY 2.0.