Religious Freedom and Contraception (among other things)

I’m amazed by the turns this issue has taken. I posted about it two weeks ago. My post had problems. Among other things, I slighted legal issues to focus on what I took to be really going on, motivation-wise. This was because I took the legal issues to be relatively clear-cut. Obviously, for Scalia-endorsed reasons, you can’t just give everyone the private right to nullify any public law, piecemeal. Religious liberty doesn’t mean that. But, apparently, it does?

“The fact that the White House thinks this is about contraception is the whole problem. This is about freedom of religion, it’s right there in the First Amendment. You can’t miss it — right there in the very first amendment to our Constitution,” McConnell said. “What the overall view on the issue of contraception is has nothing to do with an issue about religious freedom.” McConnell went on to embellish the argument, claiming Obama is being “rigid in his view that he gets to decide what somebody else’s religion is.” He said that “this issue will not go away until the administration simply backs down.”

McConnell is sensitive to the fact that most Americans aren’t opposed to birth control. So he’s leaping from the specifics of the case to the general principle. Reading opinion stuff the past two weeks, I can see why Republicans think they are on solid ground here. A surprising number of commentators, including some on the left, have been saying they think the Obama administration is in the wrong here, on religious liberty grounds. But it seems obvious (to me) that this is absurd, because the McConnell line is absurd. I am less sure that this means it’s good politics for the Dems. Clearly the Republicans are hoping they can win a bigger share of the Catholic vote, at least, by painting Obama as anti-Catholic. But the McConnell line is so absurd that it looks like bad politics to me (which is saying a lot, I know.)

What will McConnell have to say about the Muslim employer who – speaking purely hypothetically! – wants to impose de facto sharia law on Muslim and non-Muslim employees alike by unilaterally nullifying the application/enforcement/funding of various laws in creative – and religiously sincere! – fashion. Obama is going to oppose this sort of thing, because he hates religious freedom. Republicans, on the other hand …

Or take the classic case: should sincere pacifists be allowed to withhold a portion of their tax bill, proportionate to the amount of the budget that goes to funding the military? The GOP, I take it, will be supportive of all who choose to check that box.

I suppose someone is going to try to argue that this case is different, due to the peculiar design of the health insurance law. The government doesn’t provide this thing. The government requires employers to do it. So the case is analogous to conscientious objection to military service. You can force people to pay taxes that pay for guns, but you can’t actually force them to shoot the guns, personally. You have to let them be stretcher-bearers instead, or something of the sort. Only in this case the objection is to one particular form of stretcher-bearing, as it were. But it’s really hard to take this too seriously. It’s not as though anyone is suggesting we force Catholic employers to hand out birth control pills personally, much less that we force them to force employees to take the pill or anything like that. Forcing employers to pay someone else – an insurance company – potentially to pay for someone else – a doctor – to tell someone else – a pharmacist – to give something to someone that the employer wouldn’t ever ask for, for themselves, hardly seems analogous to asking a pious Quaker to shoot a man.

(The principle that layers of bureaucracy are semi-prophylactic against moral pollution is subject to doubt. But we seem to have no other principle, so this will have to do in the case of prophylactics.)

Sticking just with the medical case, getting specific: suppose the Muslim owner of a large company that employs Muslims and non-Muslims (or even just Muslims) wants to be exempt from insuring medical stuff except in cases where male employees see male doctors and female employees see female doctors. The owner find it objectionable that ‘his money’ should pay for anything he finds religiously repugnant, and this is his take on sharia law. Would Republicans have any objection?

What goes for employers will go for family law as well. Surely employers do not have more religious authority over their employees, in the workplace, than parents do over children, or spouses over the terms of their weddings. Maybe this will sound good to conservatives for about two seconds. But if you really think that religious conviction automatically overrides public law then you clearly just legalized not just same-sex marriage but polygamy and a bunch of other stuff that’s not even occurring to me at the moment. How not?

So this issue seems perfectly tailored for Democratic gotchas. Which is why I keep expecting the issue to go away. But it doesn’t.

You might object that some of these gotchas will get the Dems right back. Do the Dems have to pretend to be scared of creeping sharia, or opposed to gay marriage, to articulate what they think is wrong with McConnell’s principle? Does the table-turning need to get as phoney and nonsensical as all that – just to expose the phoniness and nonsense?

I think it should be possible to avoid that problem. But, in order to do so, you have to be crystal clear about what the principle really is. Conservatives are hammering home the talking point that Obama is telling you what religion to practice. No. Obama is (or has been: I hope the administration isn’t caving) taking the entirely correct line that religious liberty is an individual right. This means limiting group rights to impose religious views or practices on individuals.

It is more complicated, of course, but this is the principle. Religious liberty is individual liberty. It should now be possible to illustrate how McConnell’s proposal violates this principle without making it sound as though you are worried about creeping sharia, etc. (If two consenting adults want to submit to binding arbitration by an expert in sharia law, or something like that, that’s generally ok. Stuff like that. Group rights grow out of individual rights in this way, without fundamentally abrogating them.) You can explain that you are in favor of same-sex marriage (if you are) not just because someone somewhere says it’s religiously ok – so Bam! it is. For them. Rather, same-sex marriage is justified because it’s a voluntary association between two consenting adults, so forth. All this flows from consistent commitment to optimizing the supply of individual liberty. That means: making sure everyone has as much of the stuff as possible, consistent with everyone having it. When you give groups the right to restrict the religious liberties of individuals, you sacrifice this principle. (Americans are ok with some people having a lot more economic liberty than others, in effect, due to being richer. But I don’t think they think some people should have a lot more religious liberty than others, due to being richer.)

It might seem that I have now wandered far from the starting point. Surely the right to take the pill is not a religious right. Taking the pill is not like taking communion. Yes, that’s fair. But it does not follow that restricting the right to take the pill is not a restriction on individual freedom of religion.

Suppose alcohol is made illegal, on purely religious grounds. I think it’s fair to say that forcing people not to drink amounts to compelling a kind of religious observance. (A negative observance, to be sure. But that’s still a form of observance.) Compelling religious observance is a violation of religious liberty, which includes the right not to be observant of any given religion. Suppose it’s just a ‘sin’ tax, not an outright ban. Alcohol is made hugely expensive. Well, if the sin in question is purely religious – if we aren’t making the case that the state has some compelling civic or secular reason for trying to discourage alcohol consumption – then I take it forcing someone to pay more, purely on the grounds that they are ‘sinning’, imposes a religious restriction on them. Purely religious ‘sin’ taxes ought to be regarded as violations of individual religious liberty. See, for example, the history of special taxes on Jews in European history.

Now, the pill. Yes, employees can go out and buy the stuff even if it isn’t covered by employers. But, since it would be free otherwise, by law, the church groups are, in effect, imposing a ‘sin’ tax, to express religious disapproval of what these individual are up to. Surely that’s a violation of religious liberty: to wit, the right not to regard being on the pill as sinful. If the Catholic church wanted to impose a voluntary sin tax on practicing Catholics – if the Bishops said all Catholics who use birth control should pay a bit extra, to atone for this sin – that would be acceptable (at least legally non-objectionable, in the eyes of the government). But the church can’t ask the state to compel payment of this tax, unless there has been some kind of binding contract to pay. The church can’t compel the state to help them extract payment even just from Catholics, let along non-Catholics. It’s not the government’s business. Quite the contrary.

So: the contraception case really is an issue of individual religious rights (to take the pill) vs. group religious rights (to coerce individuals not to take the pill.) Individual rights trump group rights in a case like this. So Obama is right.