“FAITH, as such” Ayn Rand toldPlayboy in 1964, “is extremely detrimental to human life: it is the negation of reason.” Fast forward five decades to the Cato Institute’s amicus brief in Sebelius v Hobby Lobby Stores, Inc, one of the cases challenging the Obamacare requirement that employer health plans pay for female employees’ birth control, and you will find deep libertarian empathy for the faithful. The Christian-owned Hobby Lobby Stores, Ilya Shapiro writes, should not be forced to pay for contraceptives if the family owners believe this violates their religious beliefs:

These individuals do not check their religious values at the office door. Indeed, this Court has recognised repeatedly that an individual may “exercise” religion in virtually every phase of life. For many people, religion determines the school they attend, the food they eat, the person they marry, and the place they work. It dictates how they lead their lives, how they raise their children, and how they are mourned when they die. For that reason, this Court has declined to cabin free exercise rights to any particular activity. Instead, this Court has sensibly determined that people engage in the exercise of religion whenever their actions are “rooted in religious belief.”

This is strong stuff, couched in the language of the religious right rather than in terms of freedom of contract and freedom of association, the first principles of libertarianism. There is nothing inherently odd about libertarians supporting religious liberty, and I may have overstated things last week in a post at Big Think when I called libertarian support of Hobby Lobby “incoherent.” Jacob Sullum, responding to my post, correctly pointed out that many libertarians are religious and “some of them are even fundamentalist Christians.” But classical liberals standing up for exemptions for evangelicals comes with a dose of disingenuousness. As Mr Sullum clarifies late in his post, a libertarian worth his salt should not be satisfied with a Hobby Lobby exemption from the contraceptive mandate. A principled libertarian would not rest until the contraceptive mandate is cancelled for every businesses, religious or no. Giving certain individuals and companies “special legal privileges based on their religious beliefs,” Mr Sullum writes, is a matter of “legitimate” concern. He nevertheless supports Hobby Lobby’s case against the government because of his “general feeling...that it's better to have an unjust law with exceptions than an unjust law that applies to everyone with equal ferocity.”

That may be a defensibly pragmatic position. But for some libertarians there is a potential cost to fighting for micro-doses of liberty. “We have to be careful,” writes Roger Pilon, vice-president of Cato, of endorsing a scheme in which “religious liberty is recognised, if it is, as an exception to the general rule that government may require us to act as it dictates.” The long-run result might be freedom for a select group of pious Americans while atheists and secularists are subject to withering regulation by the state. Richard Epstein of the Hoover Institution puts a finer point on this libertarian unease with religiously based exemptions from generally applicable laws. The “classical liberal case against the law is stronger,” he writes, “than the religious one”:

A robust interpretation of freedom of association blocks the contraceptive mandate, not just for religious organisations, however defined, but for every group, regardless of its purposes or members. Any group that wants to supply contraceptive services is, of course, free to do so. But any group that opposes the mandate is free to go its separate way.

Mr Epstein slices to the bone: the true libertarian position does not valorise religious claimants as uniquely deserving of legislative or judicially enforced carve-outs. It opposes a state that meddles with its people and imposes limits on their freedom, full stop. “The entire mandate should be struck down,” Mr Epstein declares, “root and branch”. Framing the issue on “narrow” free-exercise grounds “warps the constitutional discourse.”

What does the libertarian position look like, when the gristle of religious liberty is cut away? A world free of any employer mandates at all. “The correct baseline,” Mr Epstein writes, “does not guarantee any package of healthcare benefits to any person, but leaves that topic to negotiation between parties”:

In a competitive world, firms can compete by offering or denying particular benefits, without the state having to second-guess its choices. Offering contraceptive services to women goes beyond the valuable insurance function of risk pooling, for providing any service free of charge only introduces dangerous cross-subsidies into the system.

The trope Cato and other libertarian writers emphasise is this: “the employees’ liberty is [not] restricted. They’re at perfect liberty to obtain contraceptives, but not free to force their employer to provide them.” As a narrow constitutional claim, this is correct. There is no constitutional right to a free IUD. But women who work for companies owned by religious conservatives have, under the Affordable Care Act, an equal claim to certain health insurance benefits. So when a company seeks an exemption from the mandate, it in effect seeks to deny this federally guaranteed benefit to its employees. It is no knock-down argument to say that because women have no right to free birth control, businesses have the right to duck federal requirements to provide it. The mandate aims to fulfil a governmental objective to improve women's reproductive health, just as other labour regulations aim to protect workers' interests or advance the public welfare. Many libertarians find the minimum wage, time-and-a-half pay for overtime work and other labour regulations to be violations of the freedom of contract, too, but the Fair Labour Standards Act isn't, to put it gently, ripe for repeal.

So it is clear why most libertarians are changing their tune in Hobby Lobby and why a search for "freedom of association" or "freedom of contract" in the Cato brief comes up dry: pushing the libertarian economic vision for America is a losing proposition in court. All they have to lean on, from a constitutional and political point of view, is the religious liberty angle. But if Hobby Lobby wins on that point, in view of libertarian principles, the victory will be decidely partial. And if Mr Epstein is right that recognising religious exemptions may dampen secular opposition to Obamacare and solidify the principle of government mandates in general, the victory may even be Pyrrhic.