There's No Such Thing as "Religious Liberty"

I wrote this a few weeks back, never got around to actually posting it. So pretend it's last month and then keep reading.

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?

Earlier this week, Cato's Ilya Shapiro asked "Is There No Alternative to Forcing People to Violate Their Religious Beliefs?" Shapiro suspects religious liberty (again, whatever that means) will win this round, but concludes "the more that the government expands and takes over areas properly left to civil society, the more clashes of conscience will result."

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.

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* 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).

Clockmakers and Thought Experiments

Last time I wrote about a category of thought experiments in ethics where you are presented with a choice between performing some kind of ethical transgression or not, with the consequences of not performing the transgression being incredibly dire. There are a few things someone could be trying to argue for with this sort of setup--utilitarianism, intuitionism, or merely an alternate deontological ethics that doesn't forbid the act in question.

The thing I always want to know when someone brings up one of these situations is this: where's Snidley Whiplash?

Not to be confused with Dick Dastardly.

A bunch of people got tied to the traintracks, and the only way for me to save them is to kill an innocent bystander. Suppose also that no one else is in a position to save the people. Well, how the hell did they get there? Who's the clockmaker, so to speak? Because if Snidely Whiplash tied them to the tracks, then it seems like he's the one at fault if they die, and my refusal to murder an innocent doesn't make me the murderer of the tied-up people, even though I could have prevented their deaths by not refusing.

This is even more clear if we imagine that instead of setting up a situation that somehow mechanically requires me to commit murder, Snidely Whiplash retains control of the fate of the tied-up group. "Strangle this toddler, philosopher, or I'll kill everyone here!"

Look, Snidely: I'll do me, you do you. I'm not responsible for Snidely Whiplash's choices. If he want's to kill a boatload of people, that's on him. What I have under my control is whether or not I strangle the toddler, so I don't.

Just beneath the surface here is the fact that once Snidely has set up the trolley problem, we've entered upon a second-order problem of what to do about puzzles that only arise once the rules have already been broken (Set aside the possibility of some kind of trolley-problem natural disaster). So how can we reconcile our first order duty to "keep our hands clean" so to speak with this second-order problem?

I don't think we can, really, at least with respect to our behavior to bystanders. Someone might argue that because my set of permissible acts with respect to Snidely Whiplash changes once he's broken the rules, it is plausible that my set of permissible acts might change with respect to other people. I don't buy it. We might say that it would be noble for a bystander to "take one for the team," so to speak, but to require this of them because someone else has broken the rules would be to inflict an undeserved punishment on them.

Thoughts on Thought Experiments in Ethics: A Reply to Matt Zwolinski and George H. Smith

Therefore no one will be declared righteous in God’s sight by the works of the law; rather, through the law we become conscious of our sin.

-- Romans 3:20, New International Version

In a series of blog posts starting with this piece, Matt Zwolinski and several other discussants have been weighing the value of Rothbard's Non-Aggression Principle ("NAP") as a foundation for libertarian ethics. That led up to this piece, and the comments section thereof, where Zwolinski engages George H. Smith in an extended discussion of how the NAP holds up in hard cases where the choice a person faces is to violate the NAP or accept dire consequences, for example a large number of people being raped, or the person's own death, or an innocent third party dying, etc. Situations like air pollution where small NAP violations seem to result in large social benefits are also discussed, but I want to set that set of cases for purposes of my own discussion here.

Zwolinski seems to think that these sin-or-die cases he has constructed where it seems like a reasonable person would violate the NAP show the NAPs weakness as a moral principle. He describes himself as a moral pluralist, which means he thinks acting ethically involves weighing several prima facie plausible moral arguments and deciding on the right course of action using our (properly honed) moral intuition.

I wasn't completely clear on Smith's final position, but I will try to summarize it as best I can. Smith thinks that usually the NAP is both a rule about justice (meaning roughly what rights people have) and a rule about moral permissibility (meaning roughly what actions it is or is not wrong or right to take), but that the two concepts are distinct and in some cases they diverge. Smith holds that, for example, in the case where someone must break into a cabin they don't own or face death from exposure, it is morally permissible for her to break into the cabin and furthermore that this morally permissible action is a violation of the cabin owner's rights. The cabin owner would be entitled to expel the person by force should she so choose and would be entitled to compensation for the trespass.

Smith describes himself as an ethical egoist, meaning he thinks doing the right thing means acting in one's own interest, properly construed. This will be familiar to libertarians as Rand's position, though I am not sure whether Smith considers himself a Randian.

My own position on the NAP controversey is that while Zwolinski is right to point out that most of the heavy lifting in Rothbard's ethics is done by his theory of property, not the NAP, I think his objections to Rothbard's ethics in general are not very convincing. I think he does offer a fairly convincing case that its better to treat the NAP as a heuristic than a foundational rule, though he would be disappointed by this conclusion as his aim is a "paradigm shift" in how libertarians think about ethics, which I think would be a huge mistake.

That said, I think Smith and Zwolinski are both making a mistake in how they are thinking about the relationship between thought experiments about extreme cases and ethical systems. I don't think Zwolinski's contention that we might expect a person to act contrary to the NAP in certain circumstances, and might even be sympathetic to them acting that way, tells us much about the validity of the NAP as a moral system. I think Smith's view that both the cabin owner and the cabin invader can be in the right is plausible, but I don't think it's necessary for him to go through any contortions just to demonstrate that how we would expect a person to normally act in a situation--breaking into the cabin--is an ethically permissible act.

This discussion points at a category of mistakes in ethical theory I want to now discuss at some length.

Consider this proposition, P.

P: In some set of circumstances C, I believe I would break rule R of some given moral system S.

My thesis is that P is a proposition about psychology and has no bearing whatsoever on the correctness of S.

The implied argument here seems to be as follows.

1. I am a good person.
2. Good people never do bad things under any circumstances.
3. I would break rule R in circumstances C.
4. It is not wrong to break rule R.
5. System S is incorrect.

Christianity, as per the quote I opened with, asks us to reject (1). I want us to reject (2). Sometimes people value things, like their own life or the life of a loved one, more than acting morally. This shouldn't strike us as odd, and the fact that we can imagine people acting  on those values isn't a problem for a proposed moral system.

Now, that isn't to say that we don't feel sympathy for the actions of the trespasser. I just don't think, like Zwolinski seems to, that this sympathy means the cabin owner was not wronged and that justice demands the trespasser either be punished or make restitution, etc., depending on what our thoughts on crime and punishment are.

One plausible view we might have here is Randy Barnett's position that when we're looking at the treatment of criminals, we ought to give a lot of weight to what their behavior signals about their likely future behavior. In the cabin-in-a-blizzard example, unless our trespasser makes a habit of getting lost in blizzards and breaking and entering, it seems like she's unlikely to be habitual rights violator--at least not moreso than the average person--and we ought to be fairly lenient. If, on the other hand, it becomes clear through a chain of incidents that this person isn't taking adequate preparations against the weather because she knows she can just break into a house if things go bad, then it makes sense to throw the book at her, life-or-death situation be damned.

Another way to look at the situation is to ask what we would think of a person who froze to death rather than break into the cabin, or to take a more extreme example from Zwolinski's thought experiements, lets the world be destroyed rather than scratches someone's finger against their will. We might very well have a hard time relating to a person who acted that way--but wouldn't we also see their actions as somehow admirable?

People have brought up the Joker in The Dark Knight in this context--"Tonight you're gonna break your one rule"--but this impulse goes much deeper in human culture. I am reminded of a vignette from Arthurian legend where a knight--I think Galahad--comes upon a tower of damsels, who tell him the only way for their lives to be saved is for him to commit a mortal sin. The knight refuses, and the damsels are revealed to be demons, the tower an illusion. I couldn't find this story specifically (I read it in The Once and Future King), but here is a similar story.

So, fiat justitia ruat caelum, I say. Just don't judge those cabin trespassers too harshly--they're only human.

The Tea Party

This post has sort of been *ahem* brewing in my head since late October/early November of last year. There are many reasons for this delay--election season, finals, the holidays, etc--but perhaps it was for the better as now we have a bit of perspective. The impetus for writing was a at least semi-scientific survey I came across--more on that in a minute--and an article I came across giving something of a brief history of the Tea Party to that point. Now, after the election, and with the new Congress about ready to get down to business, it is fairly clear that the Tea Party is going to have at least some staying power in American politics, and that makes a sort of retrospective analysis seem appropriate.

The very interesting Wall Street Journal piece "Birth of a Movement" has it that while small pockets of protesters began coming out of the woodwork during the Bush bailouts, the watershed moment was Rick Santelli's February 19th 2009 rant from the floor of the stock exchange in Chicago.



That is probably as good an event to pick as any. But before the epithet of choice for the guy in a tricorn hat waving a Gadsden Flag and throwing tea into bodies of water was "teabagger," it was "Paultard."

On November 5th, 2007, Ron Paul raised $4.2 million dollars in 24 hours. No one connected to the campaign was involved with planning it--I am reasonably certain none of them knew about it before the money started rolling in, and if they did, they certainly didn't expect it to get as crazy as it did. I remember following this on The Daily Paul and being awestruck (I stopped going to The Daily Paul after it was overrun by conspiracy types for a period...I don't know if this is still the case.). What was even cooler was this other site, though, which I am surprised to find still exists: http://ronpaulgraphs.com/. The site harvested date from the campaign's widget and used it to calculate things like estimated new donors, and you could watch all kinds of graphs updating in real time, which was especially fun whenever there was a money bomb.

Which brings me to the point I was trying to make--the second money bomb was on December 16th, 2008--the 234th anniversary of the Boston Tea Party. In addition to an even bigger money bomb (Wikipedia has the total between $6 and $6.6 million, arguably still the largest amount donated to a campaign on a single day. Roughly half of these donations came from people who hadn't given to the previous effort. A video promoting the money bomb went quasi-viral...there were a lot of very well done amateur Ron Paul campaign videos back then, now that I think of it, many of which struck quite an emotional chord with me at the time.



See Also: "Don't Tread on Me," "The High Tide."

I would be remiss at this point if I didn't mention the name of Trevor Lyman who put a lot of effort and imagination into the grassroots fundraising. We also have him to thank for the Ron Paul Blimp, which is hilarious and awesome.

Anyway, as much as I love reliving the high point of the '08 primaries, I've started to drift a bit. The point is that a lot of the feet-on-the-ground activists associated with the Ron Paul campaign (often organized through MeetUp)had adopted the whole retro-American-colonial-era look long before there was a "Tea Party Movement." Here's a description of some of the Ron Paul Tea Party events in Boston in December 2007 from the Boston Globe: Ron Paul's tea party for dollars and here's a follow-up: Ron Paul raises millions in today's Boston Tea Party event. Here's an alternate take from the Washington Post: Ron Paul Beats Own Fundraising Record. Again--tricorn hats. Gadsden flags. Tea bags. Sound familiar?

Apart from the trappings of the modern Tea Party movement, we also see some of the language originating in the Paul campaign as well as some of the issues. No one was talking about the importance of the Constitution and the legacy of the founders before the Paul campaign. No one was chanting "end the Fed," either.

Ron Paul, of course, did not win the primary...but some of the funds raised ended up as seed money for Campaign for Liberty and Young Americans for Liberty, so it can't be said that nothing positive came of the money bombs. I remember thinking at the time that maybe he should have spent more than he did on the primaries, but in retrospect it probably wouldn't have mattered.

The end of the campaign season left a whole lot of Ron Paul meetup groups with nothing to do, and I suspect that a great many of them became some of the original Tea Partiers. The next big "Tea Party" event was what people called the "Tax Day Tea Party," a series of simultaneous rallies scheduled on and around April 15th, 2008. There was an event in Pittsburgh, but I did not attend...I don't recall whether I had heard of it or not.

It was around then that the national umbrella groups started to congeal and FreedomWorks started trying to ride the wave. It was also when Glenn Beck began becoming more of a Tea Party icon...by September, the 9/12 crowd had done the whole "let's all go to DC for a day" thing that would flourish a year later with the whole Rally to Restore Honor thing. In any case by that time the Tea Party was a national story and I'm unlikely to add anything people already don't know by way of rehashing the narrative here.

Which brings us to the lead-up to the 2010 election, and a study I read by an organization called MyType. They get their data from Facebook surveys, which probably introduces some selection bias, but honestly it's probably not that much worse than landline telephone surveys, and they had a very large n. I've quoted the executive summary below.

MyType, a psychographic opinion research firm, surveyed over 17,000 Americans about the Tea Party to reveal the demographics, values, morals and personalities of the movement's supporters. Looking for the defining characteristics of a presumably cohesive party, MyType instead found the movement in the middle of an identity crisis. According to MyType's data, devoutly religious conservatives comprise 22.5% of the Tea Party and are its fastest growing segment. They bring with them a fundamentally different set of values, morals and personalities than libertarian supporters, a core group that represent 17% of the party. While the former tend to be morally charged, family-oriented traditionalists, many libertarian supporters are neither religious nor traditional – rather, they are independent, intellectual, and morally permissive. The rising prominence of religious conservatives within the movement, highlighted by recent religious right rhetoric from several prominent figures affiliated with the Tea Party, appears to be driving away libertarians and others. Despite the surge in support from religious conservatives, overall support for the Tea Party is in decline.

The complete study is available here. The results are summarized here, which is a nice intermediate-length read that I got a lot out of. I had always suspected that the Tea Party movement had a split personality, and the researchers were able to come up with distinct libertarian and Christian conservative psychological profiles that fit large portions of the movement.

I did attend the second Tax Day Tea Party event in Pittsburgh on April 11, 2009. Alan Keyes (barf) was the keynote speaker. I wore my "Students for Ron Paul" shirt, which was pretty well received. I also went to several Tea Party events in the summer of 2009 as part of my internship with Bureaucrash. These events were attended by a hodge-podge of paleoconservatives, libertarians, Libertarians, Objectivists, veterans groups, and one or two guys wandering around aimlessly with conspiracy theory signs (Almost always male, almost always with unkempt beards. Or maybe that's just my imagination filling in the gaps in memory, who knows.) Occasionally an abortion group would show up but other than that I didn't run into any culture warriors. There was dialogue. You could talk to these people, and they'd listen with interest.

As summer headed into fall and the election grew closer, the trend was a libertarian exodus and a religious conservative influx. Some have speculated that this was because religious conservatives are joiners whereas libertarians aren't. I don't think that explains it entirely. If it were true (and I'm not so sure that it is as true as the stereotype would have you believe), it would go a long way in terms of showing why the schism was causing one faction to leave rather than the other, but it doesn't explain there being a schism in the first place. Moreover, it doesn't explain why so many from the religious right would join a movement that had a fairly strong libertarian streak at the time.

My take is that what we're seeing happen to the Tea Party was probably inevitable from the beginning, for several reasons. First, there are only so many libertarians, and you can only convert people so quickly. The larger a "libertarian" movement gets, the less likely it is to be actually libertarian. Second, it isn't as though the religious conservatives just came out of nowhere. Many of them were probably in the movement from the very start, only at first the fault lines weren't visible. In the early days, the Tea Party was widely conceived as a movement about economic policy only. The libertarian and religious conservative elements (and presumably a variety of other elements) could coexist so long as "social issues" remained on the back burner (Let's leave aside for a moment whether such a dichotomy makes sense.)

The rub is that you don't have the option of not talking about social issues when you're running for office, and both moderate GOP primary opponents and liberal general election foes were eager to make Tea Party candidates talk about social issues. Being anti-bailout, anti-tax, anti-nationalization of industry was a good place to be in terms of popularity back in November. Being an incumbent was not. What we saw, I think, was a desperate effort on the behalf of establishment candidates to make the elections about something, anything, other than the economy.

This trend produced some bizarre political ads.

This one makes me laugh every time, although it isn't as bad as some pundits made it out to be. It was a risky ad that backfired to a degree.



Christine O'Donnell is obviously not the sort of person I'd ever vote for, but the fact that she felt compelled to go on television and deny that she's had congress with the beast strikes me as wrong on several levels. Speaking of the occult...

Is this even real?



That was a rhetorical question. It's real. Also, Aqua Buddha is my new god. You heard it here first, folks.

I get the sense that the media and other candidates just had no idea what to do with the Tea Party candidates...I think that this confusion was twofold; they didn't understand their tactics (even now most folks in Washington see politics as a top-down game), and they didn't understand where they were coming from ideologically. I won't deny that some of the vitriol directed at Tea Party candidates and the Tea Party generally is deserved, but I think a large portion of it is just the reaction of a group of people faced with something they both cannot understand and believe themselves to be above. I mean really, populist Constitutionalist conservatives? And they dress up in costumes? They're obviously rank amateurs, and all we have to do is wait for them to self-destruct while mocking them unceasingly. Leave politics to the professionals.

Of course, while in some places things played out according to the establisment candidates' script, there were enough races where things didn't go down quite so simply.

And so Ron Paul's son is a Senator, and Harry Reid somehow got out of the race of his life (in a manner, incidentally, that I think smells to high heaven of foul play...but I haven't researched the matter thoroughly enough to know one way or the other), we had a write-in candidate somehow win in Alaska. Democrats were given a shellacking, and yet it seems like it's the Republican leadership that is the most terrified of anyone.

Then this nonsense down in Arizona happened. I have to admit I was expecting a bunch of noise from all sides about how we shouldn't politicize the tragedy and whatnot, but instead what happened was this bizarre race to point fingers followed by a series of "well-I-nevers" and takings of umbrage. And claims of blood libel...which is a can of worms I'm content to let rot on the shelf.

Getting back on track--we had this election. The Tea Partiers all lost the "don't talk about gays and weed" game they had been playing so well; indeed it would have been nigh-impossible to navigate an election cycle without opening Pandora's box. This is important because it has, I think, rather strong implications in terms of libertarian political strategy.

There is, of course a time and a place for coalitions and big tents and setting aside differences with conservatives (including religious conservatives and hard-core neocons, with particular care taken). What the Tea Party experience should have taught us is that electoral politics and grassroots activism is not the place. This brings me back to my dangling thread from earlier. There aren't really any "social issues" and "economic issues." Economic activity takes place in a social context; indeed it would be silly to try and describe an economic system apart from describing a social system. Issues like drug use and immigration, which some call "social," are in fact perhaps more reasonably seen as instances of a product ban and artificial barrier to trade in the labor market. The line is getting a little tired at this point, but I'm going to repeat it nonetheless: there is one freedom, and it is indivisible. We should have remembered that it is indivisible conceptually, and we have been reminded that it is indivisible practically. What we need to be doing is getting people to think about political issues in a systematically libertarian way. The a la carte approach, where libertarians are seen as oddities that are a hybrid of economic conservatives and social liberals, picking and choosing various positions from both sides, has to go. It is bad for branding and hinders libertarian activist efforts as a practical matter. I will say it again: we need to find ways to get people to think like libertarians, not get them to adopt positions which happen to be libertarian on a given issue. "Fusionism," as the doctrine of libertarian-conservative alliance is called, is a relationship where one party sees nearly all of the benefit, and here's a hint: it smells of elephant dung.

We need to stay on-message. The left and the right are hypocrites; the state is inimical to freedom, it is an instrument of violence which various political factions seek to wield for their own benefit, it is an unsuitable means of managing the increasingly complex network of human relationships we call society or civilization, and it must be severely curtailed if not abolished as both an ethical and a practical matter.

And that, I think, about concludes my remarks on the Tea Party.

UPDATE: David Boaz has weighed in, and he is considerably more optimistic than I have been above. Some food for thought here.
http://www.cato-at-liberty.org/does-the-tea-party-care-about-liberty/

Bureaucrash Update

Figured I'd post this here for people who follow this blog but not my writing elsewhere...below is a list of links to the writing I've done at Bureaucrash since starting to work there.

Boétie on Voluntary Servitude and Nonviolent Resistance
Tainted Eggs and Tainted Markets
Will the Internet Free Us From State-Controlled Currency?
Shouting "Fire"
Happy Birthday, Ludwig von Mises
Prepare for Trouble
The Myth of Libertarian Misanthropy: Technology, Alienation, Society, and Government
Of Spliffs and States’ Rights
The Four Loko Ban, the TSA, and the Banality of Evil
The Top 5 Obvious, Ubiquitous Fallacies of Political Economy
On Corporate Personhood
Private Currencies and the Regression Theorem

Back to Bureaucrashing

I have started working part-time at CEI, the place I interned last summer, and in connection with that have made my first blog post in a long time on the Bureaucrash main page. It's about Boétie's Discourse on Voluntary Servitude. Go take a look!

Happy Sucession from Britain Day

Just wanted to wish everyone good tidings on the anniversary of our ancestors' secession from Great Britain. I've also posted some actually content today, as well. See below.