The Supreme Court's 5–4 decision in the Hobby Lobby case — giving certain corporations an exemption under the Religious Freedom Restoration Act to the Affordable Care Act's contraception mandate — is a travesty, an outrage, a monumental setback for the rights and reproductive health of women.
At least that's what many liberals are saying.
Which is unfortunate. Because liberals should be cheering the decision on.
The notion that liberalism is primarily an ideology of personal liberation and social egalitarianism — an ideology imposed, upheld, and enforced by the government uniformly across civil society — has become widespread among American liberals only in the past few decades. Prior to that time, liberalism was understood to be a system of institutions designed both to protect individual liberty and to foster a robust civil society in which those individuals can freely join together in collective pursuit of various and often conflicting visions of the human good. Churches are one important part of such a civil society, but so are corporations.
Yes, liberals should uphold individual rights, but they should also uphold the freedom of private entities like churches and businesses to maintain their religiously based identities, even when part of that identity clashes with the rights of individuals.
But wait! Isn't that contradictory?
Of course it is. Just like life itself.
As everyone except children and ideologues understand, goods sometimes conflict with one another. Liberalism's greatest virtue and strength as a political philosophy is its effort to adjudicate those conflicts, to allow people on various sides of moral and theological clashes to reach peaceful settlements that, on the whole, maximize human freedom.
It's a messy business that requires trade-offs and compromises, and sometimes leaves no one fully satisfied. But that doesn't mean it isn't preferable to the alternative, which is to fully satisfy some, leave others significantly less free, and create a more homogenous civil society, with private entities forced to function as arms of the liberal state.
Take the issues involved in the Hobby Lobby case. Should contraception be legal and freely available for purchase? Yes, and it is. Should contraception be included in health-care coverage? In most cases yes, but not if a private entity (a church, business, or closely held corporation) opposes such coverage for religious reasons. (Note that a single-payer system, in which the government provides health-care coverage directly to individuals without using private entities as intermediaries, wouldn't run into this problem at all.)
Will women who happen to work for that exempted church, business, or corporation be adversely impacted? Yes, they will. But by how much? At a time when contraception is relatively inexpensive and the vast majority of people living in poverty can afford to own microwaves, televisions, and cellphones, I'm willing to wager that in most cases the burden will be relatively slight. Especially because Hobby Lobby also already covers 16 of the 20 forms of contraception included in the mandate, objecting only to those it considers to be abortifacients.
To which many liberals will passionately object: Why should even a single woman have to endure any extra burden at all when it comes to her reproductive health?
That's a fair question.
Here's the properly liberal answer: Because we live in a world, and in a country, in which some people (including some women) disagree with your vision of the good — and you don't always get to use government coercion to force them to act in ways that violate their beliefs.
The mere fact that some of our fellow citizens hold and sometimes act on traditionalist religious and moral views is not a sign of impending tyranny. Just as an inconvenience suffered by women who work for businesses owned and run by traditionalists isn't evidence of incipient fascism.
Which leads, inevitably, to another objection: Couldn't racist business owners use the reasoning in the Hobby Lobby case to claim religious exemption from statutes that ban discrimination against African-Americans?
Answer: They can try, but they will fail.
Beyond the meticulous narrowness of Justice Samuel Alito's majority opinion, there's the fact that racism is much less deeply woven into the fabric of Judeo-Christian scripture, doctrine, and theology than are traditionalist teachings on sex and gender. For that reason it is far more difficult to craft a religiously grounded case for racial discrimination.
Is it impossible? Since such arguments have been made many times in the past, the answer is obviously no. But at this point in history, they are extremely unlikely to be found publicly persuasive or to prevail before the court.
Almost as unlikely as Rick Santorum's nightmare vision of an advocate for bestiality using a constitutional right to same-sex marriage as a wedge to establish marriage rights between a man and his dog.
In both cases, the argument presumes a slippery slope where none exists.
If I owned and ran a business, I would gladly conform to the ACA's contraception mandate and provide coverage for my female employees. That's undoubtedly the liberal position.
But it's also a liberal position to accept that not everyone agrees with the liberal position on every issue — and that those who dissent remain our neighbors and fellow citizens. This is their country, too. Until liberals begin taking that vision of tolerant generosity to heart, they will fall short of what liberalism at its best demands and requires.
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