You will be highly unsurprised that Damon Linker has once again done his “liberalism, properly understood, compels agreeing with conservatives” routine:
The Supreme Court’s 5–4 decision in the Hobby Lobby case — giving certain corporations an exemption under the Religious Freedom Restoration Act to the Affordable Care Act’s contraception mandate — is a travesty, an outrage, a monumental setback for the rights and reproductive health of women.
At least that’s what many liberals are saying.
Which is unfortunate. Because liberals should be cheering the decision on.
Yes, liberals should uphold individual rights, but they should also uphold the freedom of private entities like churches and businesses to maintain their religiously based identities, even when part of that identity clashes with the rights of individuals.
But wait! Isn’t that contradictory?
Of course it is. Just like life itself.
As everyone except children and ideologues understand, goods sometimes conflict with one another. Liberalism’s greatest virtue and strength as a political philosophy is its effort to adjudicate those conflicts, to allow people on various sides of moral and theological clashes to reach peaceful settlements that, on the whole, maximize human freedom.
This mode of argument — “this case presents a clash between potentially legitimate interests, so in conclusion, I win” — is, to put it mildly, unsatisfying. So there’s a clash of interests — why should we favor the company’s position when the logic applies equally the other way? Since Linker doesn’t actually use any discernible criteria to reach his conclusion, I thought it would be useful to try to actually think through this problem. It seems to me that there are three major things liberals should be thinking about when presented with this kind of problem:
Would this alleviate or reinforce domination? Democratic values should seek to increase individual liberty by attenuating power relations, private as well as public. In this case (since state power is implicated either way) this would compel siding with the workers, not the employers who wish to deny them something they have a right to based on religious values they don’t share. Linker, conversely, seems to side with Alito’s illiberal “kiss up, kick down” assumption.
Who would bear the greatest burden of the accommodation? This is both possibly the most important question and where the case for Hobby Lobby really collapses. I agree that liberals should in some cases accommodate religious belief where doing so doesn’t burden third parties. If there are two people working in pharmacy and one opposes Plan B on religious grounds, having the employee who doesn’t object fill the prescription makes sense. If this creates a de minimis burden on a third party — say, waiting an extra five minutes — that’s fine. If this means a substantial burden for the customer — say, waiting until tomorrow — then the employee should fulfill the prescription irrespective of her religious conscience.
In the case of the contraceptive requirement, the burden on third parties is clear, direct, and material. Employees will be denied a something they worked for and are entitled to under federal law without being compensated for the denial. The burden on employers, conversely, is so abstract and attenuated it’s hard to even explain what it is. The Greens are not required to use contraception or advocate the use of contraception. They are not making the decision about what insurance should cover, and they are not making any employee’s decision to use contraceptives (which, as Ginsburg’s dissent observed, is an autonomous choice of a woman and her doctor.)
When a clash of interests presents a substantial burden against a trivial one, it seems obvious that all things being equal the claims of the former should prevail. Combining points 1 and 2, Linker’s resolution of the problem produces a net diminution of religious freedom, rather strongly suggesting that he’s reached the wrong answer.
Is the Standard Workable? This this involves legal decisions that will apply to future cases, we also have to ask whether the standard created will lead to perverse consequences going forward. Alito’s Bush v. Gore-style attempt to make Hobby Lobby good for this day and train only notwithstanding, the decision logically gives employers who want to engage in various forms of discrimination a strong argument. Linker attempts to respond:
Which leads, inevitably, to another objection: Couldn’t racist business owners use the reasoning in the Hobby Lobby case to claim religious exemption from statutes that ban discrimination against African-Americans?
Answer: They can try, but they will fail.
Beyond the meticulous narrowness of Justice Samuel Alito’s majority opinion, there’s the fact that racism is much less deeply woven into the fabric of Judeo-Christian scripture, doctrine, and theology than are traditionalist teachings on sex and gender. For that reason it is far more difficult to craft a religiously grounded case for racial discrimination.
This distinction — between what is truly fundamental to a faith and what isn’t — is one that the courts absolutely cannot make. They might be able to inquire into whether a belief is sincere, and they can certainly inquire into whether a burden is substantial, but it would not merely be wrong but would also violate the Establishment Clause for judges to make inquiries into what “really” counts as a religious tenet and what doesn’t. I also note that the claim that opposition to contraceptives is “deeply woven” into the Greens’ Protestant faith is…highly questionable, a point Linker neatly elides by raising the question to the higher level of abstraction of “traditionalist teachings on sex and gender.” At any rate, if this is Linker’s limiting principle, the answer is that there is no limiting principle; the conflicts will be resolved by judges determining which litigants they take seriously and which they don’t.
There are cases where religious freedom might pose a difficult problem for liberalism. Hobby Lobby isn’t one of those; its claims plainly should have been rejected.