Quotes of the day

1) What can stop a company from arguing that it is against the owner’s sincere religious beliefs to pay workers a minimum wage?

The Religious Freedom Restoration Act is not a blank check to religious groups to do what they want. The law says that the religious belief must be sincerely held, and also that the government can burden the exercise of that belief if it has a compelling state interest that cannot easily be achieved in any other way. That’s why no one has successfully started the Church of Not Paying Any Taxes, though people have been trying that dodge for years…

6) Can the Catholic Church now hire undocumented immigrants because it believes in amnesty?

No, because see above: Religious freedom gets balanced against the government’s interest in secure borders. The church is very likely to lose if it tries this, which it won’t…

10) What if your employer decided it didn’t want you spending your salary on IUDs because they’re paying for it?

Why does so much of this argument end up in ludicrous hypotheticals? First, no employer that we know of does this; second, they couldn’t do this, because of health-care privacy laws; and third, if they tried to argue from RFRA, the Supreme Court would not side with them, because again, the liberty promised under RFRA is balanced against other interests, not absolutes. RFRA has been around for 20 years, and we haven’t legalized, say, pedophilia.


This gets us to why I think the ruling’s majority essentially agreed with the protesters. If I like to dress up as a character from Game of Thrones on weekends, pretending to fight snow zombies and treating my mutt like she’s a mystical direwolf, that’s none of my employer’s business. But if I ask my employer to pay for my trip to a Game of Thrones fan convention, I am asking him to make it his business. If my employer refuses, that may or may not be unfair, but it’s his right. If, in response, I go to the convention and have the government force my employer to pay for my travel, that only makes things worse. It not only makes my private pursuits my boss’s business, it makes them the business of taxpayers and a bunch of bureaucrats in Washington.

At the heart of this, and so many other recent controversies, is an honest disagreement about how society should be organized. For liberals (and far too many Republicans), businesses should be de facto, if not de jure, extensions of government. If something is desirable, businesses should be forced to impose it.


Conceptually, they have two choices. They can limit themselves to fixing the specific inequities the ruling created (for female employees of Hobby Lobby and similar companies). Or they can move more aggressively, to make sure the ruling isn’t used as pretext to weaken other benefit guarantees or to discriminate against sexual minorities and so on. To flatten the slippery slope.

The Center for American Progress, an influential liberal organization, is pushing for the latter approach. In a strategy memo sent my way, CAP experts argue that the proper course of action would be to amend the federal Religious Freedom Restoration Act and comparable state-level laws to explicitly prohibit business owners from using them “as a tool to discriminate or deny needed medical care.”…

That would be a better outcome than a narrow fix for burdened Hobby Lobby employees and others. It would create clarity where the Court created confusion. And though the politics aren’t as straightforward as a narrowly-tailored fix for female employees of religious business owners, it would force Republicans in Washington and in states across the country to take a position on the question of whether they think “religious liberty” entails the right to discriminate against and impose on others broadly, not just with respect to their legal guarantee of cost-free contraception.


This week, in the Hobby Lobby case, the Supreme Court ruled that a religious employer could not be required to provide employees with certain types of contraception. That decision is beginning to reverberate: A group of faith leaders is urging the Obama administration to include a religious exemption in a forthcoming LGBT anti-discrimination action

“It would be nice if we had just a little bit more leverage,” said Schneck, a onetime cochair of Catholics for Obama. “I am a very strong supporter of LGBT rights, and I am really excited about the prospect of extending provisions against discrimination in federal contracts. But I am also aware that this is an issue that provokes real differences among some of the most important religious organization on the front lines of providing care for the poorest and most vulnerable.” Those groups, he said, need to be allowed to work with the government while following the dictates of their faith.

To these religious leaders, Hobby Lobby ought to prompt the White House to reexamine the way it weights religious rights against other priorities. Liberals opposed to the decision, on the other hand, argue it creates a slippery slope to more and more carve-outs from important legislation for claims based on faith. This executive order could be the next battleground for those competing points of view.


The Hobby Lobby reaction is not an isolated example. In the case of Brendan Eich, social liberals were clamoring for a CEO to be fired from his job over a single donation in support of a cause—a successful California ballot initiative reaffirming marriage as the union of a man and woman—that few, if any, of his colleagues even knew he advocated. Despite an impressive history with his company and no record of mistreatment of any employee, Eich was effectively ousted…

[M]any social liberals behave as if error has no rights, treating disagreement as a denial of common humanity. That’s not to say that this tendency has been missing from social conservatism, either in the past or present. Nor should conservative Christians forget that the Bible foretold much worse mistreatment of believers than a few poorly reasoned tweets and angry Salon articles.

But when you have people wondering whether we should have six Catholics on the Supreme Court and musing about “concerns about the compatibility between being a Catholic and being a good citizen,” we have something closer to a Jack Chick tract than classical liberalism.


Sometimes it seems that this is fine with the Left, because the Left is done arguing. They are ready to unleash the power of the federal government to stamp out viewpoints, including most conservative religious beliefs, that diverge from the moral standards defined by the chattering-class elite…

On the battle line of “religious liberty” versus “bigotry,” an arms race is underway. State governments levy fines on wedding photographers and prosecute florists for limiting their work to man-woman weddings.

This strikes the Right as an attack on freedom of conscience. For the Left, it’s government’s way to crush bigotry.

If this definition of bigotry is widespread on the Left — and if the Left is as willing as it appears to outlaw such “bigotry” — then expect a brutal offensive by liberals set on eradicating their opponents.


The first source of controversy is the collapse of a national consensus on a key element of religious liberty: accommodation. Throughout American history, there has been widespread agreement that in our religiously diverse and widely devout country, it is good for the government to accommodate religious exercise. We have disagreed about particular accommodations (may a Muslim police officer wear a beard, despite police department policy?), and especially about whether religious accommodations should be ordered by judges or crafted by legislators. But we have generally agreed that our nation benefits when we help rather than burden those with religious obligations. That consensus seems, quite suddenly, to have evaporated…

The third source of controversy is a change in our views of the marketplace itself. The marketplace was once seen as place to put aside our culture wars and engage in the great American tradition of buying and selling. The shopping mall has even been called the “American agora.” But today the market itself has become a site of cultural conflict. Hobby Lobby is one of many companies that seek to express faith commitments at work as well as at home and that don’t see the workplace as a thing apart from religion. Many companies preach and practice values, religious and otherwise, that are unrelated to market considerations. CVS, for example, recently announced that it would stop selling tobacco products, regardless of how that decision might affect its bottom line.

A country that cannot even agree on the idea of religious accommodation, let alone on what terms, is unlikely to agree on what to do next. A country in which many states cannot manage to pass basic anti-discrimination laws covering sexual orientation is one whose culture wars may be beyond the point of compromise. And a nation whose marketplace itself is viewed, for better or worse, as a place to fight both those battles rather than to escape from them is still less likely to find surcease from struggle.


But an interesting aspect of [Ginsburg’s] opinion is her echoing of HHS’s, and Obama’s, view of for-profit entities. For-profits aren’t important and vital contributors to society that provide desired products while often adhering to certain religious or moral codes. Rather, the world is divided into those who do good (the government, the Court, nonprofits) and those who make money (and must be controlled by government). In a part of her opinion that was joined only by Justice Sonia Sotomayor, an Obama appointee, Ginsburg writes (again, quoting from a prior opinion) that “‘for-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].’” In other words, for-profits are just that — for profits. They are only about making money.

This points to a wider victory in this case, a victory for the sorts of civil associations and for-profit businesses that are at the heart of American society. These are the very entities — ranging from small civic groups, to religious charities, to closely held businesses with moral compasses — that Obama and Obamacare are actively in the process of bulldozing. The Court’s opinion decimates the administration’s distinction between non-profits and closely held businesses while also highlighting the differences between such closely held businesses and the giant corporations that are more often the allies of big government. It’s telling that the largest company in America — Walmart — is an Obamacare supporter, while the companies that are always trying to fight off the relentless regulatory onslaught of this administration are, at least disproportionately, the little guys.

The crucial importance of the space between the isolated individual, on the one hand, and big government and its big-business allies, on the other, points to the fact that, while this particular case hinged on a law protecting religious liberty, the bigger issue at stake is liberty itself.