I confess I’ve been surprised at the vitriol last month’s decision in Hobby Lobby has drawn from the left. To me, the case seems a narrow victory in favor of religious freedom. But critics, including some on the Court, see the case as a major defeat for freedom and equality. In their view, the Court has allowed religious zealots—for, in truth, who else would object to the contraceptives at issue?—to impose their beliefs and affect the life choices of their women employees. Once again, the forces of regression have attempted to coerce women. And the Court has allowed it.
This is perplexing. It’s worth repeating: Hobby Lobby objected to covering only four contraceptives out of the twenty HHS mandated. It did not threaten to fire or discipline women employees who used one of the contraceptives; it objected only to paying for the contraceptives itself. Moreover, the Hobby Lobby Court endorsed an accommodation that allows employees who wish to obtain the contraceptives to do so at no cost. In short, no Hobby Lobby employee who wishes to use one of the four contraceptives will be prevented from doing so.
So why all the vitriol? Why all the talk of coercion? In a very insightful post at Bloomberg View, blogger Megan McArdle explains the situation. In fact, it’s one of the better posts I’ve seen on the controversy.
McArdle says three factors are involved. First, the left cannot understand why religion should merit this sort of deference. Although “the religious right views religion as a fundamental, and indeed essential, part of the human experience,” she writes, “the secular left views it as something more like a hobby.” For the left, therefore, “it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts.” In fact, although McArdle doesn’t put it this way, the Court has allowed religion to interfere with sex, which really is “a fundamental, and indeed essential, part of the human experience.” It just seems crazy.
Second, about coercion. From the classical liberal perspective, in which rights are principally negative rights, the Hobby Lobby case does not involve coercion. As McArdle writes, “How is not buying you something equivalent to ‘imposing’ on you”? But if we consider that our society confers many positive rights as well as negative ones, the situation becomes much more complicated:
“Do what you want, as long as you don’t try to force me to do it, too” works very well, which is why this verbal formula has had such a long life. But when you introduce positive rights into the picture, this abruptly stops working. You have a negative right not to have your religious practice interfered with, and say your church forbids the purchase or use of certain forms of birth control. If I have a negative right not to have my purchase of birth control interfered with, we can reach a perhaps uneasy truce where you don’t buy it and I do. But if I have a positive right to have birth control purchased for me, then suddenly our rights are directly opposed: You have a right not to buy birth control, and I have a right to have it bought for me, by you.
Third, she writes, the classically liberal distinction between the state and civil society has broken down. Classical liberalism accepted a large public space that did not belong to the government. Now, however,
For many people, this massive public territory is all the legitimate province of the state. Institutions within that sphere are subject to close regulation by the government, including regulations that turn those institutions into agents of state goals—for example, by making them buy birth control for anyone they choose to employ. It is not a totalitarian view of government, but it is a totalizing view of government; almost everything we do ends up being shaped by the law and the bureaucrats appointed to enforce it. We resolve the conflict between negative and positive rights by restricting many negative rights to a shrunken private sphere where they cannot get much purchase.
In this context, it’s possible to believe that Hobby Lobby’s founders are imposing their beliefs on others, because they’re bringing private beliefs into the government sphere—and religion is not supposed to be in the government sphere. It belongs over there with whatever it was you and your significant other chose to do on date night last Wednesday. In that sphere, my positive right to birth control obviously trumps your negative right to free exercise of religion, because religion isn’t supposed to be out here at all. It’s certainly not supposed to be poking around in what’s happening between me and my doctor, which is private, and therefore ought to operate with negative-right reciprocity: I can’t tell you what birth control to take, and you can’t tell me.
McArdle agrees with the Hobby Lobby decision, by the way (as do I), which makes her willingness to see things from the opposite perspective all the more welcome. Read the whole thing.
