Private Companies and Religious Freedom

Today’s New York Times features an op ed by former executive editor Bill Keller. He weighs in on the religious liberty debate, especially the question of whether owners of for-profit companies can claim rights of religious liberty. It’s not the most clear-minded piece, but it raises the key questions.

The most obvious concerns Hobby Lobby and other litigants. Keller sides with those who think it obvious that the regulatory state can tell corporations what to pay for and what not to pay for, just as the government can tax and spend as it sees fit. This view fails to grasp a key distinction. There’s a difference between what the government does in taxing and spending and what the government does in using its regulatory power to force me to spend. That’s why Chief Justice Roberts redefined the individual mandate as a tax. The government has a near plenary freedom to tax. The Constitution limits the government’s power for regulate.

It’s for this reason that Keller’s moral and legal analysis doesn’t work. He says that we’re right to exempt a pacifist from military service (though in fact we allow no Constitutional right to conscientious exemption from military service), but wrong to grant him the right to withhold taxes if he objects to our war-making policies. The same holds for Hobby Lobby, he says. But that ignores the difference between taxation and regulation. Hobby Lobby isn’t being forced to pay taxes that pay for abortion-inducing drugs (that’s already happening with Medicaid payments). It’s being told to pay for private insurance policies that must pay for abortion-inducing drugs.

Keller writes: “I don’t know what the courts will say, but common sense says the contraception dispute is more like taxation than conscription.” Spoken like a true liberal. For him there’s no real distinction between government and the private economy. In many ways that’s an important issue at stake in this debate: the collapse of civic life, which includes economic relations, into the regulatory state.

There’s a second issue here. Keller mentions the Civil Rights Act, which intervened deeply into private employment decisions and many other aspects of civil life. It did so because we thought we faced a profound problem—racism—that required draconian measures. I find it remarkable that Keller thinks free access to contraceptives is analogous, which he must if he thinks the coercive measures associated with Civil Rights Act provide a useful way to think about the contraceptive mandate. Fully funded sexual freedom is equivalent to overcoming Jim Crow?

Keller closes with some observations by Douglas Laycock, a University of Virginia law professor. Laycock has been a noble defender of religious freedom, but he pretty much thinks we ought to fold our tents. “Interfering with someone else’s sex life is a pretty unpopular thing to do,” he says. Hum. Refusing to pay for insurance policies providing free contraception constitutes “interfering with someone else’s sex life”? I suppose Laycock would say voting against redefining marriage also constitutes “interference.”

We live in an age in which even sensible liberals like Doug Laycock assumes that people are oppressed unless they have full social recognition and financial resources to endorse and support their choices. And since it’s the job of the government to protect freedom, we must all be compelled to provide recognition and support. Rousseau theorized this form of totalitarian liberalism.

This is perhaps the crux of the debate about the contraceptive mandate. If Bill Keller thinks it’s imperative that conscience give way to the great social cause of free contraceptives—a non-issue if there ever was one in American public life—I can imagine he’s not terribly concerned about religious freedom when it comes to gay rights, a cause with much a much more plausible (if misguided) claim to social urgency.

This in one reason why religious leaders know we need to make a stand now.