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After Hobby Lobby Ruling, How About Government Protect the Rights of Everyone?

Although many of the criticisms of the Supreme Court’s recent Hobby Lobby ruling stem from indefensible premises—such that some people have a “right” to force others to pay for their birth control—other criticisms point to a real problem with the decision and with the law on which it is based, the Religious Freedom Restoration Act (RFRA). The problem is that, although the decision and the RFRA protect the rights of people with particular religious convictions to act in accordance with their own judgment, the decision and Act do not protect the same rights for everyone else.

The proper solution to this legal contradiction is not, as many critics of the Supreme Court’s decision claim, for government to stop protecting the rights of people with particular religious convictions. Rather, the proper solution—the approach consistent with the principle of individual rights—is for government to start protecting the rights of all individuals to act on their judgment, which means (among many other things) the right to operate their businesses as they see fit and to voluntarily contract with others—or not to do so—as they see fit.

Consider the case of ObamaCare’s requirement that businesses provide to employees health insurance that covers birth control—the matter at the heart of the Hobby Lobby decision. The owners of Hobby Lobby do not wish to provide such insurance because they believe certain types of birth control act as abortifacients, and they believe, on faith-based, religious grounds, that abortion is inherently wrong.

But many other people do not want to provide or to purchase such insurance, not because it violates some religious taboo, but because such insurance makes no rational or economic sense. For example, my wife and I are atheists who think abortion should be legal. But my wife does not need birth control at this time in her life—and, if she did need it, we would prefer to pay for it directly rather than pay higher insurance premiums to “cover” it. By forcing us to buy health insurance that “covers” birth control we don’t need, the government effectively forces us to subsidize the birth control of others, through our insurance premiums.

So the pressing question is: Why does the government protect the right of Hobby Lobby’s owners to decide what type of insurance to offer, but government does not protect the rights of my wife and me to decide what type of insurance to seek?

In a recent article, law professor Sasha Volokh discusses such problems with the RFRA. He argues that the law (at least as interpreted) violates the Establishment Clause of the First Amendment, because it recognizes people’s rights to act on deeply held religious beliefs, but not people’s rights to act on “deeply held secular convictions.”

As Volokh notes, former Supreme Court justice John Paul Stevens saw the same problem with the RFRA. In Justice Stevens’s words, it “provided the Church with a legal weapon that no atheist or agnostic can obtain.” Unfortunately, Stevens wrongly implied that, because government should treat everyone equally under the law, government should violate the rights of religious people along with the rights of atheists and agnostics.

The case about which Stevens wrote involved a Catholic church that wanted to improve its property while local government, for the sake of preserving “historic landmarks,” forbade such improvement. But government has no moral right to violate people’s property rights for the sake of preserving “historic landmarks” or for any other reason. Those who own property have a moral right to use it as they see fit (so long as they do not violate anyone else’s rights in the process), and they have this right whether they want to use their property for religious or nonreligious purposes.

Similarly, in her dissent to the Hobby Lobby decision, Ruth Bader Ginsburg concludes that, because the RFRA protects people motivated by certain religious views but not people motivated by other views, government should not protect the rights of any business owner to decide what type of health insurance to offer. Her argument is essentially this: Because government fails to protect the rights of all, it should protect the rights of none. The obvious alternative—and the morally correct one—is for government to recognize and protect everyone’s rights fully and equally.

There is no clash between government protecting people’s rights and government treating everyone equally under the law. Indeed, ultimately government can treat everyone equally under the law only by consistently recognizing and protecting everyone’s rights.

The problem with the recent Supreme Court ruling is not that it recognized the rights of Hobby Lobby’s owners to operate their business as they see fit in the sphere specified. The problem is that it does not recognize the rights of everyone—people of faith and people of reason—to operate their businesses and to run their lives as they see fit in all spheres.

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