Hobby Lobby Case Shouldn’t Be About Religion, It Should Be About A Government That Does Too Much

Eric Teetsel and Andrew Walker have a piece in The Federalist today arguing that government attempts to carve out exemptions to some laws on the basis of religion is incompatible with the Free Exercise clause of the First Amendment.

Religious freedom as nothing more than exemption is concession; little more than the slow and incremental surrender of a basic human right. The Supreme Court will likely rule on these issues in the next year and religion may win under the rubric of exemption, but it is unlikely the Court will wipe the slate and reinvigorate the free exercise clause. It is the responsibility of the people to revive and rebuild a culture of religious freedom, one that values the vital contributions of faith-based individuals and organizations. Or, at least, one that understands if the state can tell a person what to believe, or deny the right to conform one’s life to her beliefs, it can do anything.

While I agree with this in theory (and I agree wholly with the notion that the Court’s religious freedom jurisprudence is a mess), I think there are practical problems left unaddressed. What do they think a proper balance between the need for universal applicability of laws and the Free Exercise clause would look like?

Clearly no one argues that an assertion of a religious belief alone is a Get Out of Jail Free card when it comes to following a law. The Supreme Court has held that Amish have to pay Social Security taxes and that religious pacifists have to pay taxes even if some of their money goes to supporting wars.

Inevitably there will be conflict between religious belief and the law, as there has always been in this country. The question is, how to balance the two? Relying on the Supreme Court is clearly a dicey proposition based on the particular beliefs of 9 people at a given moment in time.

The solution I would focus on isn’t trying to convince five justices on a case by case basis but rather a less active, more limited federal government.

These conflicts have multiplied in numbers as federal, state and local governments have expanded beyond their traditional boundaries over the last 60 to 80 years. Liberals will always claim that their actions are about expanding freedom. What they never admit is that while they may well be doing that for certain favored groups, it often comes at a loss of liberty for individuals in groups they don’t favor.

Progressives can boast about providing insurance for some but we must focus that what they are providing doesn’t come out of thin air. The resources for it are taken from others (who might have had different plans for them) and the services required to give coverage meaning must come from someone. Government mandates are not only ineffective (to say the least in the case of ObamaCare) but dangerous to a free society.

My argument against the contraception mandate isn’t that it infringes on people’s religious beliefs and practices but that the federal government has no business telling anyone what must be in insurance policies.

If you accept, even if only by implication, that the mandate is flawed on religious freedom grounds that will mean there are grounds on which it is acceptable. That by definition leads a big government exemption culture, whether based on a constitutional right or simple political might.

My argument against “non-discrimination” laws isn’t that photographers have a religious right to not shoot same-sex weddings, it’s that the government doesn’t have the right to tell anyone who they must do business with. That the state elects to recognize certain things doesn’t require that individuals do so as well or that state approval means all individuals must approve. (I will admit that I make an exception for race based non-discrimination laws (which are separate from affirmative-action laws) because race, especially when it comes to black Americas, does have a long and sorted history that I think merits special distinction. We can argue about that another time.)

The list of big government programs goes on and on but you can see how expanding the size and scope of government inevitably makes it the arbiter of winners and losers. Expanding freedom (albeit a warped version of freedom) for some, constraining it for others.

In theory, Constitutional guarantees are supposed to trump the prevailing political winds But the reality is different when momentary winds become long lasting and powerful political tides.

It’s tempting to say, “we will just fight this one battle at a time” but that is how you get the “exemption culture”. Liberals will always outlast conservatives when it comes to a war of attrition. As Charles C.W. Cooke put it, “today’s exemption is tomorrow’s loophole”.

Shrinking the scope of government redistribution of goods and services is the only truly reliable way to reduce these conflicts and reestablish Constitutional norms. Either rip out the progressive worldview at its roots or be prepared to be strangled by the weeds it spawns.


About Drew

I blog about politics and hockey because I sort of understand those things. I'd blog about women but I'll never understand them.

Posted on November 27, 2013, in Uncategorized. Bookmark the permalink. 3 Comments.

  1. I think the Hobby Lobby case should be used as an example illustrating why the system of employer provided insurance plans don’t make sense. There has been some discussion of the “golden handcuff” effect. Business leaders like this aspect as it ties the employee to their job in ways that simple financial reimbursement does not, but the employee as an individual suffers from a lack of freedom of job mobility and ability to take career risks, and this has economic impact as workers do not as easily allocate to there best use as well as personal impact as individuals are less free to pursue interests, dreams, satisfactions, goals. The issue of portability of health insurance has to be addressed by those who believe in free markets.

    There has also been discussion about the inequity of tax treatment in the employer vs. individual insurance market.

    Not enough has been discussed regarding the way employment law affects the individual when the employee becomes more and more entangled with their employer. Why does no one ask what business any employer has to be involved in the health care discussion of their employees. Why should they be a gatekeeper to affordable care? Free market practitioners should support the right of employers to incentivize employees to have health insurance through financial benefits to be specifically applied towards an employee’s decision to purchase a plan. But the plans themselves should not be offered through employers but through free insurance markets.

  2. I think that the government has no business involving itself in any way in the exchanges between free people, including on racial issues. The government itself cannot discriminate, but businesses and individuals absolutely have the power to discriminate.

    Let’s try a thought problem. Most marriages are mono-racial, that is to say occur within the same race or religion. One way to end discrimination in this country would be for the government to mandate a certain number of interracial marriages each year. Would this be legal? Current discrimination laws seem to say yes – the government regulates marriage, the government has a goal of reducing racial divisions, therefore the government can require some of us only to marry outside our race.

    Sounds silly? Then how is it that a business relationship comes under the governments preview? If it can tell me to hire, or not hire who I please, then it has the power to do anything at all to me. The government can refuse to do business with the company. BUT it cannot force the company to change its hiring practices.

    Regarding gay marriage, the offense, as I see it, is that the government thinks it has the power to decide who is married and who is not. Why do they have that power? Because they grant special favors on the married over the unmarried. Why did they do that? Because they are trying to exert social control over our society. Take away that control, and the issue of gay marriage becomes a personal decision for each of us.You can get married, and I don’t have to recognize that marriage if I don’t agree with it. If you don’t like my decision, we don’t have to be friends. Our you can try and persuade me. Or I you. We are all…free.

    This is a personal thing to me. My wife and I are different religions. Some members of her family don’t consider us “married” because we didn’t marry “properly” in her church. It has never occurred to me to resort to the power of the state to change their minds. I either ignore them, or just let it slide off my back, you know, like an adult.

    Neither I, nor anyone in my family, ever owned slaves, or discriminated against anyone in any way. How is it then that my behavior must be constantly monitored, directed, punished, controlled, cajoled, by the government? What right do they have to do any of this?

    I think Hobby Lobby can offer any insurance they want, or no insurance at all. I think I am free to shop there, or march outside protesting.

  3. I also agree with mostlyright – offering insurance through employers favors large business over small, because they can get reduced rates and costs for insurance. There is no reason for employers to be the gatekeepers for our health insurance at all. the ONLY reason it happens is again government interference in the marketplace via tax incentives, etc.

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