Wednesday, July 9, 2014

Leftist Hobby Lobby Critics' Mischaracterize Rights, Fear "Slippery Slope" to More Liberty

The U.S. Supreme Court’s Hobby Lobby ruling was, as I’ve noted, a narrow one. That notwithstanding, the ruling has raised the philosophical antennae of the Left. What do they fear?

Case number one is an article by Frank Askin, a  “distinguished professor of law and director of the Constitutional Rights Clinic at Rutgers School of Law-Newark.” Askin’s article is titled, In Supreme Court's Hobby Lobby ruling, whose rights are being denied?

In its Hobby Lobby ruling, the SCOTUS merely said that the contraception mandate violated the 1993 Religious Freedom Restoration Act (RFRA). The Court’s ruling can be reversed by repealing or amending that law. Pretty narrow SCOTUS ruling. But not to the Left, which seems to see a far wider threat to its agenda. Here are the opening paragraphs from Askin’s article:

Five male members of the U.S. Supreme Court ruled that the religious freedom of at least some for-profit corporations is violated by requiring them to provide contraceptive insurance to women they employ. This is akin to slave-owners complaining that Lincoln violated their civil liberties by denying them the right to keep slaves.

Whose rights are at stake when the Affordable Care Act says employer-supplied insurance must include contraception, including for women who face serious illness if they become pregnant? The law doesn’t require employers to use contraceptives themselves, to physically give contraception to employees or even to endorse its use. The rule creates no more infringement on employers’ religious exercise than paying an employee’s salary, which could be used to purchase contraception.

To the contrary, the decision allows employers to impose their religious beliefs on their employees.

Further along, Askin cites Ruth Bader Ginsburg’s dissenting opinion, which featured “a quote from the constitutional giant Zachariah Chafee that ‘your right to swing your arms ends just where the other man’s nose begins’.” Amazingly, Askin cites this quote in support of his view that the contraception mandate violates no one’s rights.

Also citing Ginsburg, Askin draws a distinction between corporations and “actual persons,” conveniently ignoring that corporations, while not “persons,” are owned and run by persons. This is a classic statist dichotomy, designed to justify government regulation of the economy by making an end run around individual rights, while claiming to uphold individual rights.

Leonard Pitts, Jr., case number two, makes essentially the same arguments in The Miami Herald. Both Askin and Pitts reject the idea of the ruling being “narrow”—i.e., without wider consequences. Both fear, as Pitts calls it, “a slippery slope.” Says Askin:

To the dissenters’ objection that the ruling would have no logical endpoint, the majority denied that it would extend in the future to include other types of religious objections, such as paying for immunizations or blood transfusions. And to the claim that even public corporations would try to exempt themselves from the law, Alito merely asserted that "it seems unlikely."

In his own concurring opinion, Justice Anthony Kennedy tried to assure readers that the holding in the case would be limited. He also noted that since the decision was not constitutionally based, Congress could easily overrule it by amending RFRA.

While the majority justices desperately attempted to minimize the eventual sweep of the opinion, Ginsburg wasn’t buying it: "Where is the stopping point?" she asked. "Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines or paying the minimum wage," she questioned, or paying women equal wages for substantially similar work?

Pitts, calling the Hobby Lobby ruling—seriously—the “latest blow against reason and individual rights,” wrote:

Not to worry, writes Alito, this ruling is “very specific.” Not to fret, concurs Kennedy, this is not a ruling of “breadth and sweep.” Let no one be mollified by these assurances.

Under the court’s logic, after all, it’s difficult to see why a corporation owned by a family of devout Jehovah’s Witnesses can’t deny blood transfusions to its workers. Or why one owned by conservative Muslims can’t deny employment to women. Or why one owned by evangelical Christians can’t deny service to gay men and lesbians.

What is the difference between that outrageous behavior and Hobby Lobby’s? By what reasoning is the one protected, but the others are not?

I left these comments to Askin’s article, which also applies to Pitts’s piece:

Professor Askin’s first paragraph indicates a confused understanding of rights.

Rights are guarantees to freedom of action in a social context, not an automatic claim to goods or services that must be provided by others. If the latter is the case, then a right to birth control means others are your slaves who must be forced to provide it. But there is no right to enslave. As the Declaration points out, rights guarantee the pursuit of happiness—in this case, the pursuit of birth control, not the provision of birth control.

It’s certainly true that "your right to swing your arms ends just where the other man’s nose begins," but the meaning of that wisdom apparently escapes Professor Askin. Chafee means that no one may pursue his happiness by initiating force against others. Since, essentially, a person’s rights can only be violated by forcible interference by other people, rights end where the initiation of force begins. Since corporations are owned and operated by individuals, the “rights” of corporations are really individual rights. Since the contraception mandate initiates governmental force against private corporations by compelling them to spend their resources to provide birth control against their convictions, these individuals’ rights are violated.

There is an analogy to draw between the mandate and confederate slaves. But it’s the opposite of Askin’s view. These businessmen are in principle in the same position as confederate slaves: Both the slaves and employers were victims of the initiation of physical force designed to compel them to provide unearned benefits to others, also known as involuntary servitude. The Hobby Lobby ruling [actually, the company's choice not to provide the insurance coverage in keeping with its owners' conscience] does not bloody the nose of employees. It was the contraception mandate that bloodied the nose of employers.

So how does one pursue his happiness, with all that that entails, if the initiation of physical force is off limits? By voluntary persuasion and agreement—i.e., trade—with others.

Askin’s second paragraph indicates his misunderstanding of the crucial link between liberty and property rights. The right to life, liberty, and the pursuit of happiness implies the right to use one’s own resources according to one’s own judgment, because one’s property is one’s means of sustaining and enjoying one’s life. No property rights, no liberty. Forcing a businessman to spend his money paying for contraception for others is essentially no different from “require[ing] employers to use contraceptives themselves, to physically give contraception to employees or even to endorse its use.” A businessman therefore has the right to set the terms of employment, by voluntary agreement with his employees. But once his employee is paid, that money is the employee's property, to be spent as the employee chooses. What a person earns is his property, to be spent as he pleases. The employee spending his earned money on birth control does not violate the religious employer’s rights. Forcing the employer to provide the birth control as part of his employment terms does violate his rights. The difference is as stark as night and day.

Furthermore, the choice not to provide birth control coverage to employees is not “employers impos[ing] their religious beliefs on their employees.” Where’s the imposition? The employee has no right to birth control provided by others against others’ will to begin with, and the employee is not prevented from pursuing birth control by other, voluntary means. In fact, the fundamental issue has nothing to do with religion. Employers have a right not to provide birth control or any other type of coverage for any reason, religious or rational. If refusal to provide a benefit is an imposition, then any demand by any employee, no matter how outlandish, is a “right,” lest the employer impose his beliefs on the employee by a simple refusal to agree. This notion is absurd on its face. The right not to contract—not to agree—is fundamental to liberty.

Askin is right about one thing: Despite the SCOTUS’s convoluted, narrow reasoning, the ruling may have very broad long-term implications for the regulatory welfare state. Let’s hope that it does, because it would be good for our country—and consistent with its Founding Principles—to expand the liberty to live our lives and enjoy our property in pursuit of our personal goals, values, and happiness. Banishing the initiation of physical force, including by government officials—i.e., securing our rights under a limited government—is the key to a non-polarized society of peaceful coexistence.

Is Askin, Pitts, and the Left going hyperbolic? Maybe. Then again, they’ve always understood, better than the Right, the power of principle in determining the course of history.

Related Reading:

Extremists vs. the Moderates: Why the Left Keeps Winning, and the Right has been Powerless to Stop It

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