On Tuesday, the Supreme Court considered a challenge to Obamacare from religious employers who object to including coverage for certain forms of birth control in their employees’ health plans. Based on the questions posed, the three female justices seem poised to reject the employers’ claim under the First Amendment and the Religious Freedom Restoration Act of 1993 while the four-man conservative bloc of justices seems inclined to approve it. All eyes are on Justice Stephen Breyer, the usually verbose liberal who was uncharacteristically quiet on Tuesday, and Justice Anthony Kennedy, the moderate whose vote often tips the balance in divisive cases.
A novel conglomeration of activists has come to the defense of Hobby Lobby and Conestoga Wood, the two companies aiming to duck the so-called “contraceptive mandate.” The strange bedfellows are religious or social conservatives, on the one hand, and libertarian conservatives, on the other. The two groups’ ideological positions intersect Venn-diagram style but plenty of ideas reside on the margins. On the role of faith in public life the groups couldn’t be further apart: libertarians are typically godless fellows (and yes, they are usually fellows) who yearn for a minimal state that leaves as many decisions as possible to the individual, while religious conservatives decry the “naked public square” and want to tie religion to state lest the polity slouch in sin toward Gomorrah.
So it’s a delicious treat to watch libertarians rise to the defense of Protestant evangelicals this week. The libertarians are allergic to religion yet speak out in ringing endorsement of the right of the fundamentalist Christian employers to exercise a line-item veto over the contraceptives their employees may access under their health plans.
In a piece yesterday at Reason, “Free Birth Control and Unfree Photographers,” Jacob Sullum tried to depict liberals as hopelessly conflicted. How can you ask religious employers to provide a service they regard as sinful, Mr. Sullum asked, while prohibiting small-business owners from refusing to do business with gays and lesbians? Such a position exalts employees’ dubious “positive rights” to birth control while stripping photographers of their sacrosant “negative rights” to decline to interact with anyone they happen to disdain.
It is an old, deep dispute between libertarians and liberals whether the state has an obligation to respect “positive rights,” or, in other words, liberties that require the government to provide something to people rather than just keep their hands off of them. Contrary to many libertarians’ claims, the U.S. Constitution is not merely a charter of negative freedoms. As Eugene Volokh explains, the nation’s founding document respects a number of positive freedoms, including the right to have contracts enforced in courts and the right to police protection. And many state constitutions are generous with positive freedoms like the right to a decent public education, a healthful environment or a living wage. More to the point, civil rights legislation confers a positive right not to be discriminated against in public accommodations like movie theaters and hotels. So it is pure ideological wishful thinking for Mr. Sullum to claim that in the American system negative liberty is the only “true liberty.”
But it is Mr. Sullum’ penultimate paragraph that exposes the incoherence of the libertarian defense of biblical Christianity:
There is an important difference between demanding that the government refrain from interfering with people's reproductive choices and demanding that business owners subsidize them. Just as no one has a right to pictures taken by an unwilling photographer, no one has a right to an IUD or a Plan B pill purchased with the money of people who do not want to pay for it.
The normative framework here is clear enough: no one has a positive right to anything, anti-discrimination laws be damned. And no one has a right to a free birth-control prescription or an IUD. That view is, again, just an axiom of the libertarian principle that the state owes nobody anything. ("Buy your own damn IUD! This is America!")
But this is decidedly not the position Hobby Lobby and other closely held companies owned by pious Christians are pressing in court. They are not claiming that the contraceptive mandate is, generally speaking, unconstitutional. They do not say that any employer “who do[es] not want to pay for” an IUD or Plan B should be exempt from the law. Their argument is a purely religious one and applies only to individuals and corporations with a sincere religious objection to abortifacient contraceptives. RFRA does not carve out exemptions from generally applicable laws for people who happen to dislike those laws or who feel financially burdened by them. RFRA aims to enhance religious freedom, not to permit put-upon libertarians to close their wallets to employees seeking a benefit generally available under a federal law the Supreme Court upheld two years ago as constitutional.
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