With Hobby Lobby Stores v. Sibelius in the news--and frequently cast as a conflict between reproductive freedom and religious freedom--I found myself wondering something. What, exactly, do people mean "freedom of religion?" I confess I'm not entirely sure. From where I sit, there's no such thing as "freedom of religion."
Sometimes, when people invoke "freedom of religion," it seems like they mean the freedom to believe certain things, that is, the freedom to not be punished merely for what they believed. But we have a term for this: "freedom of conscience," which follows as a consequence of your ownership of your body and mind.*
Sometimes, when people invoke "freedom of religion," it seems like they mean the freedom to gather with other believers and to hear the words of clerics, preachers, and the like. But we have terms for this: "freedom of assembly," "freedom of association," and "freedom of speech," all following from self-ownership. If I own a building, it is my business who comes and goes and what is said there.
Sometimes, when people invoke "freedom of religion," it seems like they mean the freedom to possess and use certain devotional or ceremonial objects. But we have a term for this: "property."
Of course, other times, when people invoke "freedom of religion," they mean that other people should not be permitted to do things that offend or disgust them. If that's "freedom of religion," who would want it? We can dismiss this claim as obviously insubstantial, yet it's the only claim so far that isn't readily expressible in terms of other, more basic, rights.
To be a useful concept, "freedom of religion" must mean something more than freedom to believe, freedom to associate and gather, freedom to speak. "Freedom of religion" therefore entails that persons who justify their beliefs with reference to the supernatural are entitled to certain immunities, privileges, etc. that the rest of us are not. As distinctions go, that one seems especially arbitrary.
Which brings us to Hobby Lobby.
Professor Epstein has it right:
One depressing feature of the misguided constitutional debate over Obamacare was that it started from the common assumption that any general “freedom of contract” objection to the statute was dead-on-arrival. This dubious premise warps the entire constitutional discourse. A robust interpretation of freedom of association blocks the contraceptive mandate, not just for religious organizations, 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. Civil peace is preserved because no one faction or interest group can out-muscle any other.The contraceptive mandate is illegal period, but the sad state of Constitutional jurisprudence means that the debate has instead focused on whether freedom of religion is contravened.
The First Amendment offers two prohibitions: Congress may not establish a religion, nor may it prohibit the free exercise of religion. The first prohibition seems sensible enough. The Founders were well acquainted with the benefits of religious toleration and the dangers of state religions. The only objection I would raise is that it puts politicians in the unenviable position of having to decide which religions are "real" when setting policy. If Keynesianism were a religion, we might be a whole lot freer, since it couldn't be made mandatory! The free exercise clause, in contrast, strikes me as either vacuous or a grave mistake.
Suppose free exercise entails that any sort of behavior motivated by belief in the supernatural must be permitted. Do we have to allow human sacrifice? The torture of heretics? One hopes not. The free exercise clause mustn't protect any and all religiously motivated activity--that would be a terrible affront to human rights.
Surely, however, certain religious practices must be protected. Where to draw the line? I argue we don't need to draw a line; it's already been drawn. Religious practices are protected to the extent that they don't violate other people's rights. It's time to dispense with the idea of "religious liberty."
This isn't pie-in-the-sky stuff. There are implications here and now. For example:
- If I'm a conscientious objector, why is it easier to be discharged if I'm Christian than if I'm not?
- Why should anyone tolerate irreversible elective surgery on the genitals of infants, on whatever grounds?
More clashes of conscience are indeed to be expected, but even if Shapiro is right and the state loses this round, we should not rejoice too much. The law moves slowly, but at some point, property rights and freedom of contract must be rehabilitated. Any sort of lasting progress depends on it. "Religious liberty" is no firm footing from which to brace ourselves against the state's maelstrom. At best, it's a superfluous notion. At worst, the concept clouds our thinking about rights and weakens the libertarian case.
* I'm assuming a natural rights framework in which all rights derive from a single right (in this case, self-ownership). One of the main advantages of such an approach is that it avoids the problem endemic to rights-pluralist accounts of what to do when rights conflict. See Hillel Steiner's "The Structure of a Set of Compossible Rights" (1977) and Roger Pilon's "Ordering Rights Consistently" (1979).