Don't panic, liberals. We are not about to tumble down the slippery slope of businesses claiming religious exemptions from every law they don't like. Far from it.
Inspiring the panic is this: The Supreme Court ruled on Monday that ObamaCare's employer health insurance mandate violated the religious liberty of Hobby Lobby's owners because it forced the craft store to offer employees insurance covering contraception that Hobby Lobby's owners had religious objections to. Officially, the ruling only exempts "closely-held" companies from the contraception requirement, though that describes the majority of companies in this country.
Liberal legal commentators have argued that the justices' reasoning generates a slippery slope. If Hobby Lobby can exempt itself from the contraception requirement, then surely businesses owned by Jehovah’s Witnesses can refuse insurance policies that cover blood transfusions. Businesses closely held by Jewish or Muslim owners should be able to refuse insurance policies that cover vaccines that use pork products in them. Business held by Christian Scientists should be able to opt out of providing health insurance altogether.
And surely, the hand-wringers claim, there are problems beyond the narrow confines of health care. Muslim cab drivers have claimed, for instance, that requiring them to transport passengers carrying alcohol violates their religious beliefs. Rastafarians could have a claim for the religious infringement of marijuana laws. As Ian Millhiser points out, some Americans have claimed religious objections to laws against racial discrimination and gender discrimination, as well as objections to Social Security taxes and the minimum wage. If those who hold these beliefs are sincere, it’s hard to see why they should be required to follow the law, if you take the broad religious liberty reasoning of Hobby Lobby seriously.
Follow this logic even farther and things get even worse. A consistent application of the view that religious objections warrant exemptions to laws unravels governance altogether. Religions are comprehensive doctrines that touch on every part of life and existence. Most of the religious objections we see in the U.S. are narrowly confined to a small set of Christian sexual concerns. But religious beliefs also include divine rules about how to organize economies, families, social systems, penal systems, and even the state itself. If you allowed exemptions for anyone whose religious beliefs conflicted with the laws on these topics, the whole governing apparatus quickly falls apart.
For instance, there is a long-standing belief within some Christian communities that opposes all private property on the grounds that God made the entire world, it belongs to him, and he gave it to mankind to use in common. As P.J. Proudhon once pithily put it : "Who made the land? God. Then, proprietor, retire!" Should believers be allowed to ignore private property laws and conduct their life as if all the things of the Earth belonged to everyone collectively?
Of course not. And guess what? You don't need to worry that anything close to resembling this will happen as a result of the Hobby Lobby ruling.
If the Supreme Court consistently applied Hobby Lobby reasoning to all instances of religious objections, you would indeed see many of the absurd outcomes liberal commentators are warning of. But the Supreme Court won't consistently apply this reasoning. They will only apply it to a small set of topics important to America's Christian majority. And that's a key fact most everyone is overlooking.
The court is not a robotic applicator of consistent principles of law, especially in cases pertaining to constitutional abstractions like religious liberty or freedom of speech. Instead, the court changes case-by-case, depending upon the justices' personal preferences. For instance, the court refused to exempt peyote-smoking Native Americans from drug laws, but did extend various legal exemptions to homeschoolers, a predominately conservative Christian group. In practice, laws that run afoul of a narrow set of prominent and hot-button American Christian cultural views will risk one-off exemption carve-outs from the court's conservative majority. But very little else will get the same treatment.
Just because the straightforward logic of religious liberty exemptions supports certain frightening slippery slope conclusions doesn't mean that justices will follow this logic to its extreme ends. Claims for religious exemptions that don't have much social support and don't pull enough on the heart strings of the Supreme Court justices will get cast aside as insincere, or as clobbered by a compelling state interest.
As always, "religious liberty" will not, in practice, refer to the grandiose content-neutral concept people pretend it does, but to a small number of conservative Christian views regarding contemporary culture war topics.
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