The Last Article on the Hobby Lobby Case You’ll Ever Need to Read
Religion & Liberty Online

The Last Article on the Hobby Lobby Case You’ll Ever Need to Read

Are you sick to death of hearing about the recent Hobby Lobby contraceptive mandate kerfuffle? Me too. Yes, it’s one of the most important religious liberty cases in decades. But the constant debates about the case on blogs, newspapers, TV, radio, and social media, has left even those of us concerned about freedom beaten and exhausted. Besides, what is left to discuss? Is there really anything new that can be said?

Surprisingly, the answer seems to be “yes, there is.”

Earlier this week Megan McArdle wrote one of the most insightful articles I’ve read on the issue (and I’ve read enough about it to make my eyes bleed). McArdle outlines three points that frame the debate and lead us into bitter disagreements:

1. The Left considers religion to be both a private activity and a hobby, akin to an enthusiasm for model trains.

2. The focus on negative rights has been overtaken and superseded by positive rights.

3. There has been a shift between what constitutes the private and the public spheres, and a reductive tendency in modern political discourse to view public versus private as the state versus the individual.

Before I quote and comment on each point, I recommend reading McArdle’s article in full. If you never read anything else about the Hobby Lobby case, you should end the discussion with her column (and, of course, my comments on her article).

The key to understanding what the religious liberty debate has become so contentious is because almost all conservative believers (and many liberal religious folks) consider religious beliefs to be an integral part of our identity, if not our very existence. The secular left, on the other hand, views it quite differently. As McArdle says,

[W]hile the religious right views religion as a fundamental, and indeed essential, part of the human experience, the secular left views it as something more like a hobby, so for them it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts. That emotional disconnect makes it hard for the two sides to even debate; the emotional tenor quickly spirals into hysteria as one side says “Sacred!” and the other side says, essentially, “Seriously? Model trains?” That shows in Justice Ruth Bader Ginsburg’s dissent, where it seems to me that she takes a very narrow view of what role religious groups play in the lives of believers and society as a whole.

This really is the core disagreement in the debate. Many of us on the “religious right” tend to frame issues that are essential to a person’s being (or perceived to be such) in a religious framework. That is why we often claim that for the secular left consequence-free sex has become a form of sacrament. We almost can’t help but think “religiously.”

The secular left, however, doesn’t think religion is even as fundamental as sex, and so considers it more like an inexplicably boring hobby. Sure it can give meaning to a person’s life, they’ll admit, but so does building model trains. They will agree to respect our “hobby” as long as it doesn’t interfere with their rights (e.g., to consequence-free sex).

The second, and probably more important, problem is that the long compromise worked out between the state and religious groups — do what you want within very broad limits, but don’t expect the state to promote it — is breaking down in the face of a shift in the way we view rights and the role of the government in public life.

To see what I mean, consider an argument I have now heard hundreds of times — on Facebook, in my e-mail, in comment threads here and elsewhere: “Hobby Lobby’s owners have a right to their own religious views, but they don’t have a right to impose them on others.” As I wrote the day the decision came out, the statement itself is laudable, yet it rings strange when it’s applied to this particular circumstance. How is not buying you something equivalent to “imposing” on you?

When the Affordable Care Act was implemented, it was challenged in court because the law implied (and the Obama administration argued) that the government could force a third-party to purchase a product or service for someone else. Writing for the majority in the Supreme Court decision on that case, Chief Justice John Roberts said, “The Federal Government does not have the power to order people to buy health insurance.”

The liberal wing of the court disagreed — as did many liberals in America. Their peculiar reasoning is that if they have a positive right (a right that imposes a duty on another person or group), then other people have an obligation to pay for that right. For example, the left not only claims that people have the right to use contraception (which could be considered a negative right — a right to be “left alone”) but also that other people have a moral obligation to provide them with free contraception (which shifts it to a positive right). As McArdle explains,

In this context, “Do what you want, as long as you don’t try to force me to do it, too” works very well, which is why this verbal formula has had such a long life. But when you introduce positive rights into the picture, this abruptly stops working. You have a negative right not to have your religious practice interfered with, and say your church forbids the purchase or use of certain forms of birth control. If I have a negative right not to have my purchase of birth control interfered with, we can reach a perhaps uneasy truce where you don’t buy it and I do. But if I have a positive right to have birth control purchased for me, then suddenly our rights are directly opposed: You have a right not to buy birth control, and I have a right to have it bought for me, by you.

The final leg that holds up the left’s position is the narrowing of private and public spheres:

Our concept of these spheres has shifted radically over the last century. In some ways, it offers more personal freedom — sex is private, and neither the state nor the neighbors are supposed to have any opinion whatsoever about what you do in the bedroom. Religion, too, is private. But outside of our most intimate relationships, almost everything else is now viewed as public, which is why Brendan Eich’s donation to an anti-gay-marriage group became, in the eyes of many, grounds for firing.

For many people, this massive public territory is all the legitimate province of the state. Institutions within that sphere are subject to close regulation by the government, including regulations that turn those institutions into agents of state goals — for example, by making them buy birth control for anyone they choose to employ. It is not a totalitarian view of government, but it is a totalizing view of government; almost everything we do ends up being shaped by the law and the bureaucrats appointed to enforce it. We resolve the conflict between negative and positive rights by restricting many negative rights to a shrunken private sphere where they cannot get much purchase.

n this context, it’s possible to believe that Hobby Lobby’s founders are imposing their beliefs on others, because they’re bringing private beliefs into the government sphere — and religion is not supposed to be in the government sphere. It belongs over there with whatever it was you and your significant other chose to do on date night last Wednesday. In that sphere, my positive right to birth control obviously trumps your negative right to free exercise of religion, because religion isn’t supposed to be out here at all. It’s certainly not supposed to be poking around in what’s happening between me and my doctor, which is private, and therefore ought to operate with negative-right reciprocity: I can’t tell you what birth control to take, and you can’t tell me.

This is a brilliant analysis — and an absolutely frightening conclusion.

What can we do to push back against this totalizing worldview? Our primary tactic should be to alter the language used to frame the issues.

For instance, libertarians and conservatives will find common cause on preventing this “totalizing view of government” and conflation of negative and positive rights. But we all — both libertarian and conservative — must prevent the debate from being framed, as it is now, as promoting a “libertarian” issue. Once we concede that it is merely a matter of political differences (libertarian vs liberals), we lose. These issues transcend the normal political spectrum since they require pushing back the boundaries of public/private spheres and untangling the confusion about positive/negative rights.

Another key way to fight back is to prevent issues from being framed completely in what Mary Ann Glendon calls “rights talk.”

Converging with the language of psychotherapy, rights talk encourages our all-too-human tendency to place the self at the center of our moral universe. In tandem with consumerism and a normal dislike of inconvenience, it regularly promotes the short-run over the long-term, crisis intervention over preventive measures, and particular interests over the common good. Saturated with rights, political language can no longer perform the important function of facilitating public discussion of the right ordering of our lives together.

I agree with Jordan Ballor that an established element of Christian theological ethics is that both negative and positive rights exist as a basic reality. But it may be time to change the language by abandoning rights-based language since “rights talk” almost always works against our long-term interests.

As tired as we may be of the interminable Hobby Lobby debate, we must prepare for what comes next. That case didn’t create the rupture in society, it just exposed them to the point where they can no longer be ignored.

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).