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.