Here’s the most interesting thing to me about the long, loud debate over the recent Hobby Lobby decision: Both sides believe that they are having someone else’s views forcibly imposed upon them.
Usually in political disputes, it’s broadly understood which side is being forced and which side is doing the forcing. We may argue about how much people should pay in taxes or how harsh incarceration policies should be, but both sides can generally agree on who is being coerced and who is doing the coercing. Here we have a case in which folks on both sides genuinely believe that they are the ones being imposed upon. How is it possible that we disagree on something so fundamental and obvious?
Cards on the table: I think that institutions Hobby Lobby and Little Sisters of the Poor are obviously correct -- they are being forced by the government to buy something that they don’t want to buy. We can argue about whether this is a good or a bad idea, but the fact that it is coercive seems indisputable. If it weren’t for state power, the Little Sisters of the Poor would be happily not facilitating the birth-control purchases of its employees; the Barack Obama administration has attempted to force them to do otherwise. The U.S. Supreme Court has ruled that this coercion violates the Religious Freedom Restoration Act, and it must therefore cease.
All this is old ground. The interesting question is why people on the other side view ceasing the coercion as itself coercive while arguing that the original law did not, in fact, force anyone to violate their religious beliefs.
I think a few things are going on here. The first is that while the religious right views religion as a fundamental, and indeed essential, part of the human experience, the secular left views it as something more like a hobby, so for them it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts. That emotional disconnect makes it hard for the two sides to even debate; the emotional tenor quickly spirals into hysteria as one side says “Sacred!” and the other side says, essentially, “Seriously? Model trains?” That shows in Justice Ruth Bader Ginsburg’s dissent, where it seems to me that she takes a very narrow view of what role religious groups play in the lives of believers and society as a whole.
The second, and probably more important, problem is that the long compromise worked out between the state and religious groups -- do what you want within very broad limits, but don’t expect the state to promote it -- is breaking down in the face of a shift in the way we view rights and the role of the government in public life.
To see what I mean, consider an argument I have now heard hundreds of times -- on Facebook, in my e-mail, in comment threads here and elsewhere: “Hobby Lobby’s owners have a right to their own religious views, but they don’t have a right to impose them on others.” As I wrote the day the decision came out, the statement itself is laudable, yet it rings strange when it’s applied to this particular circumstance. How is not buying you something equivalent to “imposing” on you?
I think you can understand this, however, as the clash of principles designed for a world of negative rights, in a society that has come to embrace substantial positive rights -- as well as a clash between old and new concepts of what is private and what is public.
All of us learned some version of “You have the right to your beliefs, but not to impose them on others” in civics class. It’s a classic negative right. And negative rights are easy to make reciprocal: You have a right to practice your religion without interference, and I have a right not to have your beliefs imposed on me.
This works very well in situations in which most of the other rights granted by society are negative rights, because negative rights don’t clash very often. Oh, sure, you’re going to get arguments about noise ordinances and other nuisance abatements, but unless your religious practices are extreme indeed, the odds that they will substantively violate someone else’s negative rights are pretty slim.
I’m not saying that America ever perfectly hewed to this sort of ideal. (Blue laws, anyone?) I’m just saying that the statement of this ideal was perfectly consistent with the broadly held conception of what government was for, which was to provide “public goods” in the classical economics sense, but otherwise mostly to keep other people from doing stuff to you, not to do things for you or force you to do them for other people.
In this context, “Do what you want, as long as you don’t try to force me to do it, too” works very well, which is why this verbal formula has had such a long life. But when you introduce positive rights into the picture, this abruptly stops working. You have a negative right not to have your religious practice interfered with, and say your church forbids the purchase or use of certain forms of birth control. If I have a negative right not to have my purchase of birth control interfered with, we can reach a perhaps uneasy truce where you don’t buy it and I do. But if I have a positive right to have birth control purchased for me, then suddenly our rights are directly opposed: You have a right not to buy birth control, and I have a right to have it bought for me, by you.
Alongside this development, as Yuval Levin has pointed out, we have seen an ongoing shift, particularly on the left, in the balance between what constitutes the private and the public spheres, and who has powers in which sphere. There’s a reductive tendency in modern political discourse to view public versus private as the state versus the individual.
In the 19th century, the line between the individual and the government was just as firm as it is now, but there was a large public space in between that was nonetheless seen as private in the sense of being mostly outside of government control -- which is why we still refer to “public" companies as being part of the “private" sector. Again, in the context of largely negative rights, this makes sense. You have individuals on one end and a small state on the other, and in the middle you have a large variety of private voluntary institutions that exert various forms of social and financial coercion, but not governmental coercion -- which, unlike other forms of coercion, is ultimately enforced by the government’s monopoly on the legitimate use of violence.
Our concept of these spheres has shifted radically over the last century. In some ways, it offers more personal freedom -- sex is private, and neither the state nor the neighbors are supposed to have any opinion whatsoever about what you do in the bedroom. Religion, too, is private. But outside of our most intimate relationships, almost everything else is now viewed as public, which is why Brendan Eich’s donation to an anti-gay-marriage group became, in the eyes of many, grounds for firing.
For many people, this massive public territory is all the legitimate province of the state. Institutions within that sphere are subject to close regulation by the government, including regulations that turn those institutions into agents of state goals -- for example, by making them buy birth control for anyone they choose to employ. It is not a totalitarian view of government, but it is a totalizing view of government; almost everything we do ends up being shaped by the law and the bureaucrats appointed to enforce it. We resolve the conflict between negative and positive rights by restricting many negative rights to a shrunken private sphere where they cannot get much purchase.
In this context, it’s possible to believe that Hobby Lobby’s founders are imposing their beliefs on others, because they’re bringing private beliefs into the government sphere -- and religion is not supposed to be in the government sphere. It belongs over there with whatever it was you and your significant other chose to do on date night last Wednesday. In that sphere, my positive right to birth control obviously trumps your negative right to free exercise of religion, because religion isn’t supposed to be out here at all. It’s certainly not supposed to be poking around in what’s happening between me and my doctor, which is private, and therefore ought to operate with negative-right reciprocity: I can’t tell you what birth control to take, and you can’t tell me.
As I suggested at the top of this post, I don’t think that this synthesis works particularly well, for all sorts of reasons that are too long for an already-long blog post. This post is also already too long for me to explain that I’m aware that I’m simplifying quite a lot here and to explore some of the potential complications. But however simplified and incomplete, I do think this provides a useful framework for understanding why the two sides misunderstood each other so profoundly -- and continue to do so even after all the screaming.
Corrects description of "left" in the fifth paragraph.
Public goods are not “goods provided by the government”; they’re goods that have to be provided by the government, because no one without taxing power can efficiently provide them. Police service is the classic public good because it is nonrivalrous (multiple people can enjoy it) and nonexclusive (you can’t keep other people from enjoying the benefits). If crime goes down, all of us enjoy lower crime, even if we don’t pay taxes. Defense of the borders is another classic public good, and other items such as roads and lighthouses are usually included.
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