Freedom of Religion

Should Libertarians Support Religious Exceptions to Generally Applicable Laws?

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Steven Mazie thinks it's weird that libertarians like me are defending freedom of religion in Sebelius v. Hobby Lobby. I think it's weird that he thinks it's weird.

In a Big Think post headlined "Godless Libertarians Find Their Religion," Mazie says "it's a delicious treat to watch libertarians rise to the defense of Protestant evangelicals." How so? "The libertarians are allergic to religion," he says, "yet speak out in ringing endorsement of the right of the fundamentalist Christian employers to exercise a line-item veto over the contraceptives their employees may access under their health plans." 

Are libertarians "allergic to religion"? Many of them are, but many are not. Some of them are even fundamentalist Christians. There is no inherent contradiction between libertarianism or classical liberalism and religion, as long as religion is not forcibly imposed on people by the state. In any case, since when must you be religious to defend freedom of religion, which includes the freedom not to be religious at all?

The American Civil Liberties Union (ACLU), which in my view has taken the wrong position in the Hobby Lobby case, nevertheless has a Program on Freedom of Religion and Belief. That organization, which probably has more than its fair share of agnostics, atheists, and secular humanists, has been known to defend the religious liberty of people whose beliefs it does not endorse, just as it defends the free-speech rights of people whose views its members abhor. That is the sort of thing civil libertarians are supposed to do. If religious conservatives and secular libertarians are a "novel conglomeration" of "strange bedfellows" in Sebelius v. Hobby Lobby, as Mazie says, how would he describe the left-liberals and neo-Nazis who were allied in National Socialist Party v. Skokie?

In the comment thread under his post, Mazie concedes that "many secular libertarians coherently (and rightly) support religious free exercise rights," and the "same holds true for secular non-libertarians." He says "the incoherence comes when libertarians leap to defend individuals and corporations requesting an exemption from otherwise generally applicable laws." Here is why Mazie claims that position is incoherent:

For libertarians, the contraceptive mandate is wrong, full stop. No one should be required to pay for birth control for their employees, they say. Having a religious belief should not give you a stronger claim to exemption than anyone else. Yet Hobby Lobby is basing its claim to exemption squarely on its religious objection to abortifacients.

Before I get to the question of whether libertarians should support such religious exemptions, it's important to understand that the general principle has support across the political spectrum. The law under which Hobby Lobby is challenging Obamacare's contraceptive mandate, the Religious Freedom Restoration Act (RFRA), passed Congress almost unanimously. Under that law, "government may substantially burden a person's exercise of religion" only if it is "the least restrictive means" of serving a "compelling governmental interest." That was the test the Supreme Court applied under the First Amendment until 1990, when it reversed course in Employment Division v. Smith, holding that any burden is acceptable as long as it is imposed by a neutral, generally applicable statute.

Mazie seems to favor that approach, but the ACLU does not. The ACLU of Oregon represented Al Smith and Galen Black, the plaintiffs in Employment Division v. Smith. Smith and Black were members of the Native American Church who were denied unemployment benefits after they were fired for using peyote. The ACLU argued that the state's denial of benefits violated Smith and Black's First Amendment rights because peyote was a sacrament central to their religion. It made a similar argument under RFRA in Gonzales v. Uniao do Vegetal, the 2006 case in which the Court unanimously ruled that the statute protected a religious sect's sacramental use of ayahuasca, a psychedelic tea that contains dimethyltryptamine, an otherwise forbidden drug. The ACLU's brief in that case was joined by Agudath Israel of America, the Baptist Joint Committee, the Christian Legal Society, the General Assembly of the Presbyterian Church, the Unification Church, the Minaret of Freedom Institute, and the First Church of Christ, Scientist. More strange bedfellows!

Although the ACLU does not think the birth control rule violates RFRA, it clearly is not opposed to the general idea of a religious "exemption from otherwise generally applicable laws." But should libertarians be wary of such a policy, since it involves giving people special legal privileges based on their religious beliefs and invites the government to scrutinize those beliefs in a rather unseemly way? While those concerns are legitimate, my general feeling is that it's better to have an unjust law with exceptions than an unjust law that applies to everyone with equal ferocity. Religious and medical exceptions to drug prohibition, for example, make some people freer without making anyone else less free (although one could argue that such exceptions help perpetuate prohibition by making it more tolerable). I firmly believe that people should not need a government-approved reason to consume psychoactive substances. But it is hard for me to see how busting members of the Native American Church or O Centro Espirita Beneficiente Uniao do Vegetal advances the cause of liberty.

If all laws were legitimate and fair, the Supreme Court's position in Employment Division v. Smith (which I take to be Mazie's position as well) would make sense. To use the classic example (offered by the Court itself in the 1878 polygamy decision Reynolds v. United States), people should not be exempt from laws against murder simply because their religion demands human sacrifice. More generally, religion should not override laws that protect individual rights, which from a libertarian perspective is the main (or only) justification for government. So if people really did have a right to free birth control, allowing some employers to violate that right because of their religious beliefs could hardly be considered just. Since there is no such right, it seems to me that letting some people escape this unjustified mandate is better than forcing everyone to comply. I can see why people might be offended by such special treatment, but to me that is an opportunity for a broader discussion: If it seems reasonable to contemplate a religious exception to a generally applicable law, that is a pretty good reason to question the law itself. 

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  1. Should Libertarians Support Religious Exceptions to Generally Applicable Laws?

    Perhaps he doesn’t realize that libertarians oppose generally applicable laws, without exception.

    1. I’ll support any exemption from any law that doesn’t have actual harm to an actual victim.

      1. Some are exempt while others aren’t? I guess it’s better than nothing, but still totally unfair.

  2. For libertarians, the contraceptive mandate is wrong, full stop.

    FIFY

    1. Well I get the feeling that the author does believe that the mandate is wrong.

      And furthermore, the author says this: “my general feeling is that it’s better to have an unjust law with exceptions than an unjust law that applies to everyone with equal ferocity. ”

      But this article really isn’t about the mandate per se. It’s about the minimal acceptable health care insurance provisions under Obamacare. That’s a slightly different issue.

      1. That minimally acceptable standard is more reprehensible to me than the mandate in itself.

        Not that I believe the mandate itself is just, but were the mandate to include merely a requirement for catastrophic insurance that would prevent the taxpayers from footing the bill for the highest ticket items of medical care, I’d consider it a sane enough compromise (while still holding the position that it is neither just to levy such a requirement nor for the taxpayer to be on the hook for anyone’s failure to provide themselves with such a basic plan).

  3. Wrong question. The right question is: If a strong religious conviction would generate exemptions, should there be a law? And then it answers itself. If your law would criminalize people for acting on their religious beliefs (and, I suppose, their free exercise does not require them to take license of another’s rights) then your law is anti-libertarian.

    1. That’s the best argument.

      A law which a fundamental right such as religious freedom would blow giant loopholes in has no business being “generally applicable”.

    2. Well said.

      A law that violates your conscious shouldn’t only apply to those people who’s conscious is not generated by religious beliefs.

    3. By a strict reading of the first amendment, you know…having it mean what it actually says, any law criminalizing people for acting on their religious beliefs where those beliefs do not trespass on anyone else’s rights it is not only anti-libertarian but unconstitutional. In other words, it is no law.

    4. Well, consider some of the cases that the Sherbert test was applied to from 1963 to 1990, the period of expansive reading of the Free Exercise Clause by the Supreme Court (under the same standard as the RFRA):

      In Sherbert v. Verner, a SC woman worked for an employer that switched to a six day work week. She was a Seventh Day Adventist. Her employer said she had to work on Saturdays, and she quit rather than do so. The lawsuit was not about her wanting to keep her job. The lawsuit about about whether the SC state unemployment office could deny her unemployment benefits since she voluntarily left the job; all she had to do to keep the job was be willing to work Saturday. The Supreme Court ruled that South Carolina could not condition unemployment benefits on her willingness to work on Saturday, since it violated her religious belief.

      Note it’s a balancing test. Most libertarians are okay in principle with conditioning unemployment benefits on a willingness to look for and take reasonable employment. I think it’s not entirely crazy to make exceptions for reasonable employment to people who have sincere religious objections to particular work conditions.

      1. That is a good explanation John. The fact is preferences based on religious belief are treated differently that ordinary preferences because free exercise of religion is guaranteed in the Constitution.

        If the Constitution said “or free exercise of one’s NFL fandom”, the state of Ohio couldn’t not deny government benefits to Steeler fans.

      2. Perhaps. I suppose many laws defining benefits that must be provided will eventually place private providers and beneficiaries at some point in at least one sincere crisis of conscience.

      3. Guess I’m not part of the conditional unemployment benefits crowd. Look, it would be much better that if we must have a unemployment system, then there should be a forced deposit into an employee’s unemployment account – an account that the person can withdraw at anytime when he isn’t employed. Problem solved! No religous means test necessary, and no need for a massive goverment agency to oversee this. No fraud either because it is the person’s account.

        1. @Leigh,

          Like if you actually had the SS benefits that the letter you get every now and again says you have, and could pull from them at need? I’m not wild about a paternal state forcing me to deposit money into my personal gubmint piggy bank, but if the money’s gonna get yanked out of my paycheck anyway under the fiction that it’s in some fashion for my benefit it’d be nice to actually use it for such.

      4. Very good point. And it makes a strong case that should Hobby Lobby opt not to provide insurance in order to avoid paying for contraception, they should not be penalized for not doing so.

        In other words they should be exempted from the employer mandate.

        My position is the government can either mandate that you purchase insurance, or it can mandate that insurance cover things that some people find morally objectionable.
        It can’t do both.

    5. That is my conclusion as well, as you can see if you read the post all the way through.

      1. if you read the post all the way through

        Why the hell would we do that?

      2. Damn. Sorry. The final paragraph escaped me.

    6. Excellent point.

      Of course, to establish that argument the religious people must first win their exemption.

  4. Steven Mazie thinks it’s weird that libertarians like me are defending freedom of religion in Sebelius v. Hobby Lobby.

    You get the same attitude from some Atheist libertarians.
    Sometimes I think they’re really just progtards who are idiot savants in comprehending basic economics.

    1. Perhaps. Or perhaps you haven’t engaged their views. Or perhaps they just plain disagree with you.

    2. It is the “priciples vs principals” thing. They have a hard time understanding that rights apply even to people you don’t like.

    3. [citation needed]

      Seriously. Name one fucking non-theist here who would deny you your freedom of religion.

      1. Oh, there’s a couple of around here that are a bit hostile towards Catholics.

        1. It’s mostly just that everyone hates Eddie.

        2. Methinks that’s not even close to the same thing.

          Besides, the most hostile people towards Catholics that I know are other Catholics.

        3. There’s a difference between hostility and seeking to deny them their rights.

          Sure, hostility may be a dick move, but it’s freedom of speech.

          Some of those people are also equally hostile to other religions. Catholicism comes up more with catholics because of Eddie.

      2. Both SIV and Eddie think that freedom of religion consists of carving out legal exemptions for state-approved religions on a case-by-case basis.

        You tell me who the idiot savant is.

      3. What about the freedom of religion of non-theists?

    4. I got into a delightful three-way row on the Washington Examiner’s forums the other day. I was fighting with a rabid atheist about evangelical Christianity not in fact being the cause of slavery, Jim Crow, etc. while simultaneously fighting with some guy who was yelling about atheism being responsible for the Holocaust. You just can’t make this shit up.

  5. “In any case, since when must you be religious to defend freedom of religion, which includes the freedom not to be religious at all?”

    Since the first progressive crawled out of the primordial ooze?

    But seriously, they have no concept of rights for other people. Rights are for specific interested parties and their goal is to get enough people on their side to outnumber, or at least drown out, other groups with competing interests. Might = Right

  6. Mazie says…”libertarians are allergic to religion,”

    Bizarre statement by Mazie: I’m (deeply) religious myself and have never felt that libertarians are “allergic” to religion. Most of the people who post here are, apparently, not religious but, almost without exception, they seem to not really care whether people are religious or not provided religious people don’t have the power to impose belief. Sure, some are gently mocking of religion but hey, there’s a lot of mocking that goes on here. In fact, the people who seem to be least tolerant of religion are our resident trolls.

    1. I’ve been an atheist for over thirty years, but my motto about religion has always been: Go ahead, knock yourself out. Believe what you want to believe, just don’t try to impose it on me.

      How hard is that for Mazie to understand?

    2. Sure, some are gently mocking of religion

      LOL

      1. Maybe the problem isn’t religion, but the fact that you are a sour little asshole all the time, SIV.

        1. Don’t bother him when he’s up on that cross, NutraSweet.

          1. See? Religion-mocking! Help, help, we’re being repressed!

            1. “Come see the violence inherent in the system!”

      2. We’re not mocking your religion, we’re mocking you. Dumbass.

        1. WHERE IS YOUR GOD NOW?

      3. The KULTUR WAR TEAM players all chime in as if I were referring to them.Point proven.

        1. See. This is just you being unpleasant.

          Are we are supposed to pretend this is the very first time you’ve been a snarky little prick about atheists? Much like Tulpa, you consider remembering all the times you’ve been a snarky little prick about the exact same subject as being somehow unfair.

          1. So you’ve never gone beyond “gently mocking” religion? The louder of the adherents of Atheism ridicules religion like an uptight-noob Christian missionary does the heathens.

            1. So you’ve never gone beyond “gently mocking” religion?

              I never said I didn’t. All I’m getting at is that your persecution complex probably has more to do with your ugly personality than people’s disagreements with your beliefs.

            2. This is telling.

              the adherents of Atheism

              Idiot.

              1. This is telling.

                the adherents of Atheism

                It’s part of the derptastic argument that “not believing is belief, therefore atheism is a religion HAW HAW!” They are never more stupid than when they think they are being clever.

                1. Didn’t we talk about that very thing at the last non-worship?

                  1. Quite so, Deacon JW.

                    1. The nice thing about the atheist church is we use the building fund for beer money.

    3. Without a doubt the least tolerant of religion are leftists, and most atheists would put themselves somewhere on the left of the political aisle.

      As an agnostic, I disagree with atheists as much as I do bible-thumping creationists, but the thumpers are far more tolerant than the atheists.

      That’s what’s so attractive about libertarianism, they are essentially the “agnostics” of the political aisle.

      1. Indeed, and I’d wager that most libertarians fall into the agnostic frame as well.

        As a general rule, both those of faith and those on the atheistic side of the equation are highly certain in their beliefs and worldviews. While atheists often claim the mantle of skepticism, it seems that their certainty in issues beyond the ken of human reason (at least for now and the foreseeable future) is evidence of a true belief (albeit one that is more reasonable than transubstantiation or a living deity having roamed the Earth 2,000 years prior.

        Libertarianism is premised on the very concept that human knowledge is immensely limited and that skepticism of both thought and action is the appropriate response. We are skeptical of government, we are similarly skeptical of business, labor, and particular interest organizations.

      2. As an agnostic, I disagree with atheists as much as I do bible-thumping creationists, but the thumpers are far more tolerant than the atheists.

        Spot on

        I concur 100%

      3. Penn Jillette’s take on this was superb. In one of his videos, he described his encounters with fundamentalist Christians; they were always incredibly polite to him, never threatened him, and told him that prayed for him. He was sincerely touched.

        This has also been my experience. They are very kind people, I just disagree with their beliefs. And I do not worry about a Baptist suicide bombing me in revenge for my professed disbelief in any form of deism.

        1. Me too. I’m an atheist very much of the Penn Jilette variety. I don’t have any issue at all with other people’s faiths or religious practices–to the extent that they don’t infringe on my rights–I just don’t believe in anything of that nature myself. And I’m not agnostic; I’m totally unconvinced.

          With that said, the most obnoxious people I’ve met have been atheists. Maybe it’s the zeal of the converted or something, but it seems like your average Methodist or certainly Jew or Muslim isn’t going to beat you over the head with it, with some explosive exceptions, of course.

      4. Being agnostic isn’t a soft sort of atheism or a statement that you don’t know if god exists. The person who says “I am an agnostic” and the person who says “I am an atheist” are answering two different questions. An agnostic claims that he doesn’t believe God can be proven to exist, and an atheist says he doesn’t believe God exists. And if you’re the first, then you’re pretty much automatically the second, aren’t you?

        As far as I can tell, people who call themselves agnostic are atheists who don’t want to hurt believers’ feelings.

        1. Hardly. Atheists are very much certain that God does not exist while agnostics are merely skeptical as a rule and recognize the limits of human knowledge. Atheists fall prey to a fatal conceit that is in a way even worse than that of most religious because while the religious recognize that God cannot necessarily be proven and requires a degree of faith, the atheists claim a scientific basis that disproves God while it only disproves a very narrow conception of God as offered by the Abrahamic-personified bearded white dude in the sky and the parables of the scriptures.

          The agnostic, in contrast, recognizes that we cannot even achieve a unified theory explaining why the laws of physics break down at a quantum level, and therefore having any firm position on cosmology or metaphysics is foolhardy.

          1. You just repeated what I said with some added outrage about mean atheists.

            1. What I mean is that this

              The agnostic, in contrast, recognizes that we cannot even achieve a unified theory explaining why the laws of physics break down at a quantum level, and therefore having any firm position on cosmology or metaphysics is foolhardy.

              is a slightly longer way of saying, “I don’t believe in God.”

              1. There are limits to what science can answer much the same with religion.

                I always loved this bit from Jay Pinkerton.

                Still, the Christian defense does make an extremely strong point. A universe created by a superior being is, and let’s be honest, really no less ridiculous than a universe that slipped on a comet and accidentally created itself. A superior entity might well exist, most likely in a way we’ll never get close to comprehending. What if the Big Bang had consciousness? Is consciousness even a pre-requisite for omnipotence? Arguing about who has to prove what seems to miss the point, which is that if anyone could actually prove anything, we wouldn’t have anything to squabble about in the first place.

                http://www.jaypinkerton.com/haggai.html

                1. Yes, the Prime Mover problem. The believer says, “I dunno, God did it,” the atheist says, “I dunno.” The second answer seems considerably more elegant to me.

                  1. The agnostic says “I dunno, there might be a god.”

                    The atheist says “THERE IS NO GOD PERIOD.”

                    1. So there’s a possibility that a god could exist in the atheist viewpoint?

                    2. Sure. Why wouldn’t there be? I thought it was implicit in the “I dunno”.

                    3. Most atheists I’ve discussed this with are very adamant about there not being any possibility of God.

                      Maybe they are bad atheists, I dunno.

                    4. The atheist says “THERE IS NO GOD PERIOD.”

                      Some do, most do not. It’s a strawman argument when applied to all atheists.

                      Is it OK if I judge all religious people by their worst members and the arguments of their enemies?

                    5. SF,

                      Penn and others (even the mendacious Maher) have the point that the level of tolerance appears worse on the atheist side in many respects, without judging based on the “worst members”.

                    6. I count the possibility of God existing on par with stumbling upon a unicorn, a wood elf, a dragon and a leprechaun playing poker in the wood.

                      Produce a unicorn, a wood elf, a dragon or a leprechaun and I will cheerfully believe they exist and give good odds on the others.

                      Claiming there is some vast semantic difference between saying “X doesn’t exist” and “The possibility of X existing is 0.00000000000000000000000000000000000000
                      0000000000001%” is just a rhetorical club.

                    7. Ultimately, I believe the big problem here is that we lack a particular agreed upon definition of God.

                      I think the abrahamic personification of god (not as literally in homonid form per se, but rather the notions of necessity, intelligence, will, and benevolence) cloud the ability to have a rational conversation as to what the composition of a necessary existence is.

                    8. If a concept can’t even be defined, what’s the use of it?

                    9. I count the possibility of God existing on par with the Multi-verse theory in that neither has anything remotely approaching empirical evidence.

                      I would argue that the recent developments in gravity waves left over from the big bang are steps toward empirical evidence to test these theories but still not enough to actually test a multi-verse theory.

                    10. Not trying to be simplistic or to antagonize anyone, but doesn’t “athiest” break down to “a”, as in “not/no”, and “theo” for God, hence indicating a belief that there is no God, just as “agnostic” modifies “gnostic”, meaning knowledge, to indicate that there is no knowledge or certainty as to whether or not there is a God? If an atheist isn’t saying” there is no God, period”, then what do they stand for? And if it’s not a belief that there is no God, then why not call themselves something else that better reflects what they do believe?

              2. Non-belief in God Believing God does not exist.

                Two very different viewpoints, one saying essentially “I don’t know,” and the other saying “I know.”

                Does that help to clarify?

            2. My apologies, I misread. I thought the position was that agnosticism was a soft-atheism. That was my take away from the final line. And I maintain my disagreement with that final line. I am not reticent to hurt anyone’s feelings.

          2. Sudden,

            I don’t believe in something for which there is no proof. That makes me an atheist. That some atheists and far more religionists want to twist that into a positive statement of belief is not an issue I have to address.

            1. I’ll happily wear the apatheist moniker.

              I don’t give one fuck if God exists or not.

              1. “Je n’ai besoin de cette hypothese.”

                1. Fuck me, I left out the “pas.”

              2. I’m an apatheist – I don’t give a fuck whether your god exists or not.

            2. Well said, SugarFree. I’m an atheist because “belief” isn’t enough for me. Something either exists or doesn’t, and to the extent that I know about that existence it’s based on evidence.

              Agnostics believe that the question is moot because understanding is impossible. Atheists (at least like me) would be happy to acknowledge the existence of God or anything else provided with a modicum of evidence.

        2. Believers require no more proof than their faith.

          1. The stupidity of this religious projection is so epic that I’m thrilled that a mongoloid like yourself is making it. It’s such an excellent way for you to prove, without a doubt, how fucking dumb you are. Thank you. Please continue.

          2. See, SIV is an agnostic.

        3. And if you’re the first, then you’re pretty much automatically the second, aren’t you?

          I was with you up to there.

          Religious agnostics exist. In fact, George Smith said something to the effect of “scratch a religionist, find an agnostic”.

        4. That’s an overstatement. An agnostic is one who does not know if any gods exists. Some agnostics go further and say that they do not know how to determine if any gods exist, or that they don’t know that there is a known way to know. Only the most extreme agnostics claim that no one can know.

          1. Respectfully disagree. Atheists don’t know if any gods exist. The difference between an atheist and a theist is that an atheist doesn’t use faith or belief to bridge that lack of knowledge; theists don’t “know” God exists any more than they “know” that unicorns don’t exist. Lacking evidence, they believe in the one and not the other.

            I’m not saying that pejoratively, by the way. There are things I believe that I base on absolutely no evidence.

      5. As an agnostic, I disagree with atheists as much as I do bible-thumping creationists, but the thumpers are far more tolerant than the atheists.

        Concur++

        As an atheist libertarian I don’t agree with any of them, but find religious people as more tolerant and open. Then again I use a literal term for atheist; lack belief. That’s it. Not saying “There’s no God!”, just I have no beliefs about deities. People’s beliefs are personal and cannot be shared, only described in piss-poor ways to others.

    4. CHRISTFAG!11!1!!1!!!

  7. Leave your gun with Mrs. widget, at the door. No drinking or gambling between 4 and 6 am. Closed on Sundays.

  8. …since when must you be religious to defend freedom of religion, which includes the freedom not to be religious at all?

    It’s beyond the grasp of many people to understand someone advocating for something without an explicit self-interest.

    1. Your comment is suspect: I cannot see any gain for you by making it.

    2. “What’s the Matter With Libertarians?”

    3. “it’s a delicious treat to watch libertarians rise to the defense of Protestant evangelicals.”

      I thought the mention of the ACLU following the comment on the ‘delicious treat’ of libertarians defending freedom of religion would necessarily find a comment on the ‘delicious treat’ of Jews defending the right of Nazis to march in Skokie, Illinois.

      De gustibus non est disputandum, indeed.

  9. If it doesn’t fit into a TEAM narrative or some left-right divide, some things are just too difficult for people like Mazie to grasp. He needs simple, clear enemies and allies. Having integrity means nothing.

    1. Manzie can’t comprehend that anyone would decide their opinion based on anything but whether a position produces a result they like, helps people they like or hurts people they don’t like.

      Don’t you get it Episiarch? Manzie thinks religious people are icky and therefore can’t understand how anyone could not support something that harms them.

      1. Or just as much as if it would produce a result they like, if it would hurt people that they don’t like. Politics is always personal to the low-forehead crowd, don’t forget that.

        1. The personal is the political. They said so themselves.

    2. That puts it into a nutshell nicely.

  10. The one thing on which we can all agree is that Reason is going to milk this cow until her teats are raw and sore. Anyone got any Bag Balm?

  11. Maybe this idiot missed it but the 1st Amendment says in part

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

    He acts like someone asking for an exception to a generally applicable law because it violates their religious beliefs is the same as someone asking for it for any other reason. That may be his opinion but it is not the opinion of the Constitution. Free exercise of religion is an enumerated right. That means religious preference gets treated differently than other preferences. If this clown doesn’t like that, he should argue for a change to the 1st Amendment.

    The Amendment means that people can and do get religious exceptions to generally applicable laws. If they didn’t and the government were free to pass laws that force them to do things that violated their religion, they wouldn’t have free exercise rights.

    Quakers can get out of the draft. It is a generally applicable law that you can’t serve alcohol to minors, but no state could enforce that law against churches that serve a few drops of wine to minors during communion. They sure as hell could enforce it against a restaurant that as a matter of course let minors have a taste of wine.

    This case is not about the issue of “should religious people get an out from generally applicable laws that violate their religion”. That issue was settled when they adopted the 1st Amendment.

    Steven Manzie is a fucking moron.

    1. Native American Church-members have that exception allowing them to use possess, sell and traffic in* a Schedule I “narcotic” (mescaline).

      *So long as they traffic it only to others of their faith.

      1. Another good example. It seems that Manzie, and a lot of other people, are so stupid they don’t understand that the Constitutional guarantee of free exercise of religion means that religious beliefs are special and treated differently than other beliefs.

      2. And that exception is generally adored on the left, because its an exception for both drugs and non-white people (two things the left loves).

        However, the exception here is largely for white people and at the perceived expense of women who need birth control. Considering that white people and conservative sexual values are both hated by the Marcusian left, this fails to garner their support.

        I am continually sickened by the inconsistency in application and the view of the law as nothing but another club to reward their intellectual/cultural allies and punish their intellectual/cultural enemies.

        1. Not perceived. Imaginary.

          We are talking about people here who never argue in good faith, ever.

          Their inconsistency is due to, as Epi points out above, a complete lack of or understanding of integrity. They have a predetermined goal in mind. They change the meanings of words and twist logic and extrapolate oceans of bullshit from it until it leads where they want to go.

      3. Yes, but as a result of the RFRA, since the Supreme Court narrowed the Warren Court’s 1963 interpretation and balancing test in 1990, in a Scalia decision.

        Several states, including Arizona, have a specific exemption for peyote for the Native American Church. Though as we’ve seen Arizona still does not have a general purpose state level RFRA, after the recent uproar. (People being upset, including here, that the law would be passed for the wrong reasons, with the wrong precipitating event.)

        1. I think Arizona has a RFRA, but it’s unclear if that law protects for-profit corporations or can be invoked by a defendant where the plaintiff is a private person (as opposed to a govt agency). The neighboring state of New Mexico said a similar RFRA didn’t apply in the latter situation. So the Arizonans were simply seeking an amendment to specify that religious freedom applied to everyone.

          1. I think you’re correct on this.

    2. This case is not about the issue of “should religious people get an out from generally applicable laws that violate their religion”. That issue was settled when they adopted the 1st Amendment.

      Not settled, you exaggerate. For instance, in the late 19th century the SCOTUS ruled that Mormon polygamy was not protected. (Reynolds v. United States.)

      In 1961, in Gallagher v. Crown Kosher, the Supreme Court ruled that a Kosher supermarket had to follow Massachusetts’ blue laws and be shut on Sundays, even though they and all their customers were also shut on Saturday, They had formerly done about one-third of their business on Sunday, until Massachusetts shut them down.

      It was only from 1963 to 1990 that the Court (starting with the Warren Court Sherbert decision) took that expansive view (but I think largely correct) of the Free Exercise Clause. The RFRA then reestablished that test, though the SCOTUS struck it down as it applied to the states, saying that Congress couldn’t apply the old Supreme Court test to the states if the SCOTUS didn’t think that the First Amendment required it.

      1. The issue was settled John. What has not been settled is how far that exemption goes. But we know such exemptions must exist. Otherwise, there would be no protection of free exercise. Since Reason limits the number of characters, I had to edit out the sentence “this case is about what circumstances is such an exemption allowed”.

        Manziel doesn’t understand that and thinks any religious exemption to a generally applicable law is invalid.

        1. Ah yes, I would agree with that. It’s clear that *some* level of heightened scrutiny is called for, but the argument goes from “as long as it’s facially neutral, it doesn’t matter that it has disparate impact” (kind of like saying that Jim Crow grandfather clauses are legal) all the way to the Sherbert Test and RFRA level of “compelling interest” and “least restrictive means.”

          In practice those things are quite a bit different, but certainly even the Sherbert Test and the RFRA did not and would not lead to any of the parade of horribles talked about. (A big reason why the chatter about the Arizona state level RFRA was highly exaggerated.)

        2. Certainly even in the blue laws cases like Crown Kosher, I’m sure that people would have viewed a “you must be open on Saturday” law as much worse than a “you must be closed on Sunday” law, even if both were “facially neutral.” Forcing people to do things does seem worse to most ordinary people.

        3. But still, note that the current Supreme Court precedent is that the First Amendment doesn’t go as far as you or I– or almost all of Congress in 1993– thinks it should. The balancing test you think is appropriate is currently supported only by statute, the RFRA. The Supreme Court would have the narrower view that would legalize laws with highly disparate impact as long as facially neutral. (Thank Justice Scalia.)

    3. Yes, I agree with you on the meaning of the 1st Amendment. Now, the Supreme Court disagrees, but since the Supreme Court can’t rewrite the Constitution, we can simply say the Court was acting lawlessly.

      It’s like the examples we discussed in another thread. The Supreme Court may have said abortion and racial segregation are constitutional, but that doesn’t make it so, and those who disagree can continue to push their interpretations in the public forum.

  12. A couple surprises appear in the article. The use of the phrase “special legal privileges” as a stand in for “constitutional right” is one. The other is the anti-textualists notion embedded in allowing a burden on free exercise for ANY reason in contradistinction to the textual version of the amendment that says “congress shall make NO law…”
    Is this interpretation something all lawyers learn in L1- remedial English? It seems so common amongst them and put into practice throughout the interpretive exercises of the big C. Shall not be infringed doesn’t mean that. NO warrant shall issue doesn’t mean that. Probable cause becomes if, and, or, maybe and but. And on and on.
    This complaint is about the specific meaning of legal terms written into an article discussing legal things and how sloppiness weakens your position and sets up weakened defenses in the future cases we will dispute.

    1. Probably because the suit is based on the RFRA, not on the 1st amendment. Though RFRA did come about because Congress thought SCOTUS got a free exercise case very wrong.

    2. But we know Congress shall make NO law doesn’t mean absolutely NO law. There is a generally applicable law against murder. I couldn’t claim that my human sacrifices were not subject to such a law. But hey, if I can’t do human sacrifices, I can’t exercise my sincerely held belief in the old Aztec religion.

      So there are parameters. And also, what constitutes an infringement? The devil is in the details.

      But, I largely agree with you. His use of the term “special legal privileges” is especially infuriating. Fuck you Steven, it is a right protected by 500 years of legal tradition and explicitly acknowledged in the Constitution. It is not a God Damned privilege douche bag.

      1. I am not sure that it being around for a long time or in the Constitution makes it any less of a special legal privilege. Copyright protection has been around a long time and is in the Constitution, but it remains a ‘special legal privilege.’

        Of course, what is being talked about here has not been around that long, it came with RFRA (which can I guess say it got it from cases like Sherbert from the Warren Court).

        1. I am not sure that it being around for a long time or in the Constitution makes it any less of a special legal privilege.

          Good for you. But that is a semantic point. Call it what you like but it is enshrined in the Constitution and is thus not treated like other preferences.

          Maizen uses the term because it is pejorative. We would never use the word when referring to any other aspect of the BOR and doing so would sound ridiculous if not offensive. Imagine saying “the special privilege of freedom of the Press” or the “special privilege of a jury trial”. You would never do such a thing and neither would Maizan. He does it here because he doesn’t think religious freedom is a valid right, BOR or no.

          1. John, how can you respond to me that my point is ‘only semantic’ when what you so denounced by the author is his phrasing?

            As to religious freedom, you can believe that government should not make laws that restrict the exercise of religious people but still not think the way to do that is to make laws apply to the non-religious but not the religious. My way would be to make few laws for anyone, for example.

            1. As to religious freedom, you can believe that government should not make laws that restrict the exercise of religious people but still not think the way to do that is to make laws apply to the non-religious but not the religious.

              You can. But you are going to end up with a set of laws that are written based on the various religious objections of your citizens. That is one way to do it and you are going to end up with very few laws.

              That said, that is not what Maizen is doing here. He would never support such a system. His problem is with the concept that religion is a protected form of expression and he wants to read it out of the 1st Amendment.

              As far as this being a semantic point, my point went right over your head. You can call this anything you like. If you want to define “privilege” any way you like. But that doesn’t change what the thing is, just what you call it. So your point that “well you could call it a privilege” is completely meaningless. You could call it an elephant too, if you wanted to change the meaning of elephant.

              1. “As far as this being a semantic point, my point went right over your head. You can call this anything you like. If you want to define “privilege” any way you like.”

                John, you are the one that got so mad because HE called it a ‘special legal privilege.’

                “His use of the term “special legal privileges” is especially infuriating. Fuck you Steven, it is a right protected by 500 years of legal tradition and explicitly acknowledged in the Constitution. It is not a God Damned privilege douche bag.”

                “you are going to end up with very few laws”

                Best case!

                1. John, you are the one that got so mad because HE called it a ‘special legal privilege.’

                  Yes, because it is obvious from the context that he means the word in the its ordinary meaning and thinks religious freedom is really just a special favor the government is under no obligation to grant. You claim that “well i could call it a privilege too”, while technically true, doesn’t help Maizen.

                  “you are going to end up with very few laws”

                  Best case!

                  Good for you. But we are not talking about you or what you claim to believe. We are talking about Maizen and he clearly doesn’t view that as a best case.

                  1. John, what I meant is that you were originally, literally making a semantic argument (about the term used, “His use of the term ‘special legal privileges’ is especially infuriating.”).

                    1. I also do not think the term is that bad. For example, I think while the RKBA is a right, it is also a privilege (which is why I think the P&I Clause protects it from state regulation). But it is not a ‘special’ privilege. Religious exemptions are special, in the sense they apply only to the religious.

                    2. Of course I am. I am looking at the context and determining what Maizen means and damning him with it. The fact that you personally can make your own semantic distinction and call something a privilege but not mean it the way Maizen does says nothing about Maizen.

                      You are just making a semantic distinction. That just means your argument is irrelevant to Maizen’s distinction not that semantic arguments in general are wrong.

                    3. I give up.

                    4. Probably a good idea given how you missed a point that was repeatedly explained to you in multiple ways….

                      But I’ll try a final way:

                      John was making a different point than you assumed and when you called him on it – he kept trying to explain to you his original point, not the point from your imagination.

                      & you think you won and he failed because he never engaged in your fantasy version of what happened.

                      If you go back and reread many of the posts you disagree with – you’ll see the exact same thing repeated over and over again.

      2. See, you guys are focused on the wrong phrase. “No law” is uncontroversial, and actually means what it says, literally. What is controversial is “nor prohibiting [not “infringing on”] the free exercise thereof”. People disagree on what constitutes free exercise of religion from case to case. People agree that murder is not free exercise of religion, so it’s not the “no law” business that is contradicted.

  13. “my general feeling is that it’s better to have an unjust law with exceptions than an unjust law that applies to everyone with equal ferocity.”

    Yes, I’ve been trying to articulate this, but this is the best phrasing of that idea I’ve seen.

  14. We could end this tired discussion if a neo-Nazi couple would just order a Hitler-themed cake from a Jewish bakery.

    1. There’s a reason why the Danish and Swiss laws against kosher and halal slaughter practices (not stunning the animals first) got a lot of hearing in the Supreme Court.

    2. It’s not April 20 yet!

  15. It is actually a tough one, because exemptions are at least in some sense a restriction on government, even if the restrictions are put in for some only based on a reason government should not countenance.

    1. It is only tough if you read the Free exercise clause out of the 1st Amendment.

      If all the government has to do to coerce people into doing things against their religion is pass a facially neutral law, then there is no protection of free exercise.

      1. I find it tough because of my agreement with the LP Platform that government should not aid or attack any religion. It seems to me granting only religious people exemptions aids religion.

        1. Then you find the free exercise clause of the 1st Amendment tough. I don’t know what to tell you. I didn’t write the Amendment, I just read it.

          1. Well, like I said, I read it a bit differently than you, and in conjunction with the Establishment Clause. Then again, I am not sure you read it that differently, since you say in this discussion that law will have to burden religion sometimes and that is OK (your Aztec example). So we both agree that the law can sometimes burden religious exercise and sometimes can not, we just differ on when. I think Scalia’s line was fine.

            1. Yes, interesting that here John is strongly agreeing with Justice O’Connor. Didn’t you insult her reasoning in general yesterday, John?

              1. Yesterday and today are two different days Mr. Thacker 😉

              2. I said her opinions were generally poorly written and results driven. That doesn’t mean that every opinion she wrote was bad. Every dog has their day.

                Just because you can make judgments about someone’s judicial record as a whole, doesn’t mean there can’t be individual decisions that are at odds with your overall judgement.

            2. You are reading it out of the amendment. It is not the establishment clause. It is an “and” to the establishment clause. It is an additional restction. The government can pass no law that establishes a religion and it can pass no law that prohibits the free exercise there of.

              The question is what “prohibits the free exercise”? That is the whole debate. But certainly some law would. And if some law would, that means that religious exceptions to generally applicable laws are allowed on the Constitution. Where you think that line falls is irrelevant to the principle that in some cases the religious do get an exemption to generally applicable laws. Maizen doesn’t recognize that because he is an idiot who doesn’t like religious freedom and wants it read out of the Constitution.

              1. “And if some law would, that means that religious exceptions to generally applicable laws are allowed on the Constitution. ”

                That doesn’t follow, because perhaps the fact that some law would violate the clause only means laws that were not generally applicable or neutral.

                You yourself are willing to allow some laws that burden religion.

                1. That doesn’t follow, because perhaps the fact that some law would violate the clause only means laws that were not generally applicable or neutral.

                  No. It means that since the government can’t prohibit the free exercise of religion, it can’t pass laws that have the effect of preventing people from exercising their religion, period. The fact that those laws equally apply to non religious doesn’t make any difference. If you banned Catholic mass tomorrow, everyone would be equally prohibited from going to mass. But that facial neutrality wouldn’t save the law.

                  Now the question is does the single religious objection make the entire law invalid as it applies to everyone. Well, you could read it like that. But no court ever has and you are pulling the idea that you could out of your ass. What courts actually do and have done is just refuse to apply laws to people who have a sincere religious objection. But that hasn’t prevented the law from being applied to the non religious. I can’t legally use peyote even though Indians can.

            3. “… I read it a bit differently than you, and in conjunction with the Establishment Clause.”

              Then you are reading the Establishment Clause in an absurdly broad fashion. An established religion is one that is explicitly endorsed and supported by the government to the exclusion of others. You seem to be arguing that the establishment clause effectively cancels out the religious freedom clause. If that is the case, its inclusion in the amendment is bizarre and unnecessary.

              1. Yes, Mickey that is what he is arguing and it is ridiculous and completely counter to the language.

                1. Bo hasn’t yet mastered human language, John. His creator tells him he’ll be a real boy when he finally does.

            4. http://users.bestweb.net/~robg…..gious.html

              You can have 2 of these 3:

              free exercise
              non-establishment
              big gov’t

              but you can’t have all 3 together.

        2. “It seems to me granting only religious people exemptions aids religion.”

          A proper reading of the 1st amendment shows (fascinatingly enough) that all beliefs, atheism/agnosticism included, are “religions”.

          The 1st amendment protects religions, and no-one would argue that it doesn’t protect atheism/agnosticism. But the 1st amendment only refers to “religion”, not to anything else. Therefore, if atheism, agnosticism, etc. are protected by the 1st amendment, then they are “religions”. Therefore, a religious exception would mean a blanket exception.

          (This assumes many things, such as the Court being logically consistent. That is highly unlikely.)

          1. Saying “It seems to me granting only religious people exemptions aids religion.” is the same thing as saying granting the right to free speech aids only those who with to engage in speech

            Yeah, in a sense all “rights” only benefit those who actually exercise them. But so what?

  16. There is one reason that perhaps should not matter philosophically, but has some meaning to me, and that is that if Hobby Lobby wins it will be yet another hole in the hull for Obamacare. Making it unworkable and more obviously stumbling strikes me as a pretty good thing.

  17. The government deciding who deserves the exception and who does not comes awfully close to an establishment of religion.

    I’d like to see some lawsuits on that basis if Hobby Lobby is successful.

    1. At least one of the amicus briefs filed in the case makes that argument.

    2. Only if they only let one religion have the objection. As long as the government treats every religion equally and applies the same standard to determine what is an actual belief, it doesn’t establish anything.

      Establishing a religion would be the government saying “only Catholics can opt out of this clause” and telling Muslims and Jews and Protestants who also have religious objections too bad.

      1. If you and I formed The Church of No-Taxes Triumphant would we have to still pay taxes?

        1. If we could show it was a real religion and not just a subterfuge to dodge taxes, sure. And if you don’t believe me, consider the Wicans. They have been granted protection as a religion. You just have to show your beliefs really are a religion and not just a made up excuse to get out of the law.

          1. I just imagine that “showing” such would be a much higher standard than “showing” you were spin-off of an existing recognized religion.

            I think the 1st Amendment is far too predicated on the idea that “freedom of religion” was going to apply to almost everyone because almost everyone would have a religion.

            If it is wrong to force someone to violate their religion to do a thing, it should be wrong to force anyone to do that thing.

            1. I agree with you. I think that the problem is not the First Amendment but how the Court has raped the rest of the document.

              The people who wrote the first Amendment never dreamed in a million years the federal government would be trying to force people to do things that violated their religion. They wrote thinking that they had to make sure no future government ever passed a law making a particular religion a crime.

              The problems you describe only have arisen because the government is so out of control. Does the 1st Amendment prohibit the Federal Government from requiring Catholics to buy birth control? Sure it does. But that is a pretty fucked up way to get to the answer when you realize that document doesn’t give the federal government the power to require anyone to buy birth control or engage in any other transaction.

              The 1st Amendment only seems like an issue SF because the Court refuses to limit the government in any other way.

              1. The 1st Amendment only seems like an issue SF because the Court refuses to limit the government in any other way.

                I agree, of course.

            2. This.

              Why should my moral objections be treated as less legitimate because they’re grounded in the natural and not in the supernatural?

              1. Why should my moral objections be treated as less legitimate because they’re grounded in the natural and not in the supernatural?

                Because the Constitution says Congress shall MAKE NO LAW prohibiting the free expercise of religion.

                That means religion special and gets special protection. Congress can prohibit and descriminate against all kinds of things. But can’t do that regarding religion.

                That is what is so special about religion. If you don’t agree with that, that is your right. But stop acting like someone just made up the idea that religion gets special protection because they are evil FUNDIES or something. The Constitution gives it special protection. And last I looked people around here took that document and its literal meaning pretty seriously.

        2. Yes SF, if you are going to have “freedom of Religion” as a separate right, then the courts and government by implication have the power to determine what a religion actually is. Does a fanatical commitment to the Cleveland Browns count as a religion?

          Yes, that is a hard distinction to make and one that Libertarians understandably have an instinctual objection to. But the only way not to give the government that power is to not guarantee the free exercise of religion.

          1. “But the only way not to give the government that power is to not guarantee the free exercise of religion.”

            Or to respect the rights of everyone, whether their actions are motivated by religion or not, as long as they do not infringe the rights of others. Giving the government the power to decide what is a legitimate religion and what is not inevitably results in the restriction of free exercise.

            1. It goes back to my example of human sacrifice. I am taking up the old Aztec religion. If the government doesn’t have the power to restrict the exercise of religion in some cases, how can it tell me I can’t do human sacrifices?

              Or take Sugar Free and I’s “Church of the Holy Tax Redeemer”. The government has to tax somehow. If it can’t determine what is an is not an actual religion, how does it keep SF and I from opting out of the tax system?

              If the government has no power to determine what is and is not a “religious belief”, then you can’t have any laws since anyone can opt out of them by just claiming religion. And if you say, we will treat everyone equally, then the government is free to stomp on religion by just passing facially neutral laws.

              1. You really need to re-read the last phrase of my first sentence.

                1. No I don’t. You need to re read my post and think about it. If you are not willing to let the government have the power to determine what is really a religious belief and what is a subterfuge, you can’t protect religious freedom. You can’t protect the free exercise of religion unless you define what religion is.

      2. Establishing a religion would be the government saying “only state-approved Serious Religions can opt out of this clause” and telling atheists, agnostics, Jedi, Pastafarians, Wiccans who also have objections too bad.

  18. “The libertarians are allergic to religion…”

    I’m a libertarian Christian Fundamentalist/Evangelical. I’m a libertarian BECAUSE I’m a Christian Fundamentalist/Evangelical. I’ve read the Bible several times and don’t see where it says we should use the state against sinners just because they are sinning.

    Why is any of this so hard for so many people to wrap their heads around?

    1. Why is any of this so hard for so many people to wrap their heads around?

      Because your voice gets drowned out by there being so many people with superficially similar beliefs that draw opposite conclusions being so much louder.

      See also libertarians vs. Randians, atheists vs. “skeptics”, Tea Party vs. SoCons*, etc.

      1. Exactly. The other thing is that a group’s enemies have an incentive to define the group by its worst and most hypocritical members.

        It doesn’t matter that 99% of Libertarians are not racist. The existence of a single racist calling himself a Libertarian will be what the movement’s enemies point to as typical.

        1. In polls don’t the overwhelming majority of self-identified “atheists” also identify as liberals/progressives/socialists ?

          1. And the smear campaign continues.

            1. Come on Sugar Free. Like every Christian isn’t painted as a mad state lover who wants to use the gun to create the new city on the hill.

              Smears are what political debate is.

              1. Oh, I know, John. What I object to is that SIV smears are OK, but any atheist half as hostile about a religion would be attacked. But somehow we are the aggressors on the board.

                tl;dr: SIV is an exclusionary little shit.

                1. ^DARWINFAG is all butthurt^

                  You’re whining “IT’S NOT FAIR”!.

      2. You could add classical liberals vs. anarcho-capitalists.

        1. And “occupy anarchists” vs. “no masters anarchists”

  19. Because your voice gets drowned out by there being so many people with superficially similar beliefs that draw opposite conclusions being so much louder.

    Exactly my point about Atheists. Note the use of the uppercase “A”.
    I refuse to cede the meaning of the word “skeptic” to them.

    1. I never have quite figured out why calling bullshit on Yuri Geller bending spoons requires a definitive pronouncement on the metaphysical nature of the universe.

  20. Feel free to correct me on this, but as an individual employee I feel that my health insurance is part of my pay package. Since the insurance is mine, I should be able to use it anyway that is legal at the time. My employer should have no say in this once the law is passed.

    1. No. Your employer buys your health insurance and gives it to you as part of your compensation. The employer does and should have as much or as little say as he wants to in what is encompassed by that health insurance.

      The employer doesn’t forfeit the right to determine what health insurance they are or are not willing to pay for when he decides to buy you insurance. If you want to determine what insurance you have, use your own money and buy your own.

      1. No. Your employer buys your health insurance and gives it to you as part of your compensation. . .

        That is simply false.

        Employers contract with insurance companies to offer their employees access to the insurance company’s risk pool. If employers bought the insurance on behalf of their employees, their employees would not pay premiums. At best, employers subsidize their employees health insurance as part of their compensation package.

  21. Since there is no such right, it seems to me that letting some people escape this unjustified mandate is better than forcing everyone to comply.

    It’s not all obvious to me that it’s “better”. It’s better for a few, at the expense of the many. Because in the process of letting some people escape the mandate, the government turns some of the people who opposed the law the most into people who now support the law, at least passively. This necessarily weakens opposition to the law. The more exceptions that get carved out in order to buy off the opposition, the more firmly entrenched the law becomes.

    If we believe that the law is evil, and we want to get rid of the law, we have to get more people opposed to it, not fewer.

    1. And it shows you just who your friends are. I’ve always wondered how many supporters could have been bought off with a provision of the ACA legalizing medical marijuana.

    2. But none of that matters. What matters is does this violate the right to free exercise. Clearly it does.

      Now it is true that it is odd to apply the free exercise clause to this case since the writers of the Constitution never contemplated that any court would ever find that the federal government had the power to coerce anyone into an economic transaction. But, thanks to the New Deal cases and Justice Penaltax, we are stuck with a situation where the courts think the government can do just that.

      Just because the courts have misread the rest of the Constitution, doesn’t mean they should do the same with the 1st Amendment here. This is clearly a violation of the free exercise clause. That it is also a violation of a lot of other things is true but it doesn’t make it any less of a violation of the 1st Amendment.

      1. I’m talking here about whether fighting for religious exemptions is a winning political strategy in the long run. I’m arguing that it’s going to be detrimental in the long run, and hence that it does matter.

        I’m not saying anything here about what the courts should or should not do in this case.

        1. I think refusing to fight for rights that are enshrined in the constitution because you think doing so might be a bad political strategy is a monumentally stupid, hypocritical and in the long run counter productive strategy.

  22. I’m out. You guys have a nice weekend.

    GO ‘CATS!

    1. Hey! It’s not yet 4:00!!! Come back here!

  23. Here is why Mazie claims that position is incoherent:

    For libertarians, the contraceptive mandate is wrong, full stop. No one should be required to pay for birth control for their employees, they say. Having a religious belief should not give you a stronger claim to exemption than anyone else. Yet Hobby Lobby is basing its claim to exemption squarely on its religious objection to abortifacients.

    That’s because Hobby Lobby is arguing its case not in front of libertarians but in front of non-libertarian, positivist judges.

    When the time comes that organizations like Hobby Lobby argue their case in front of judges who happen to be principled libertarians like judge Napolitano, for instance, THEN Mazie can point out what libertarians believe, all he wants. Right now, his point about what libertarians think is completely irrelevant.

  24. “Free birth control” means someone else is paying for it. It isn’t really “free”.

    1. Technically true. But some of us feel it’s MUCH less expensive to provide the pill or similar than to support the result of an unwanted pregnancy.

      1. Why can not those at risk of getting pregnant pay for their own pills?

  25. Eliminate employer-based healthcare and ridiculous whining by the likes of Hobby Lobby goes away. Since their employees can turn around and buy contraception with their paychecks, maybe HL should just stop paying them as well.

  26. “one could argue that such exceptions help perpetuate prohibition by making it more tolerable”

    One could argue? Full stop, Jacob. This is a fact, and every bit as significant as the defense you proffered.

    Witness the perpetuation of concealed carry licensure. Every bit of P4P (perks for permittees) further entrenches the system.

  27. Even though I’m an atheist I support the free exercise clause and if people want to believe silly things, well, that’s OK. But this case is not about an individual’s right to practice his religion, it’s whether a corporate entity can force the government to adhere to the religious practices of the CEO. That’s coercion of the highest order and anti-libertarian. Not only that, but the ramifications could be huge, e.g., a CEO who believes vaccinations contribute to autism, or a Seventh Day Adventist who wants to prohibit paying for blood transfusions, or a Mormon or Westboro Church adherent or what-have-you trying to impose its will on the employees.

    In this case the medical profession through the government’s health plan has said that those who employ X number of people should be offered a plan that pays for their contraceptive care because it’s better for their health in the long run thus saving money for everyone else. That’s a reasonable position and doesn’t force anyone to use the contraception.

    This Hobby Lobby and Conestoga suit is a not-so-subtle attempt by a few to coerce their employees into adopting their own religious beliefs.

  28. It seems to me that the fundamental issue is “are corporations (or privately-held companies) endowed with the rights of ‘citizenship’ or ‘personhood'”? For example, if AT&T were to decide that its religious beliefs prohibited mothers from being in the workplace, could they act on that?

  29. I don’t understand how it’s “delicious”.

    I find it admirable that libertarians are able to vigorously defend the rights of religious conservatives, without actually being themselves particularly religious, or even sympathizing with religious conservatives opinions about abortion and contraception.

    This is simply having consistent moral principles. We believe that everyone is entitled to freedom of conscience, and everyone is entitled to live according to their beliefs, no matter how much we disagree with those beliefs.

    What is strange about that?

    Are people expected to be hypocrites and automatically oppose even the basic liberites of people they disagree with? Is that what politics in America has descended to?

  30. For libertarians, the contraceptive mandate is wrong, full stop. No one should be required to pay for birth control for their employees. . .

    But that is just plain wrong. There is a distinct, and huge, difference between being “required to paying for birth control for their employees” and being restricted in choice to only providing access to health insurance program(s) that include contraceptive and abortifacient coverage.

    Hobby Lobby would certainly have a case if the mandate was: You [the employer] shall go to the nearest pharmacy, purchase caseloads of [the objectionable things], and distribute them to your employees. But that is clearly not the case.

    The correct argument is that the Government has no legitimate business forcing employers, of any size, to offer access to any form of health insurance benefits, much less any legitimate authority to dictate any of the conditions of that benefit.

  31. Re: Religious Liberty Exemption (1/3)
    The religious liberty argument is weak; spurious at best and pure sophistry at worst. First, see my previous post. Hobby Lobby (HL) is not being required to pay for any ObjectionableThings (short for: contraceptives, abortifacients, and everything else under the umbrella of what HL morally objects to).

    Second, there seems to be a distinct misunderstanding of how insurance works. HL does not pay for health care related products or services. HL and their employees pay premiums to the insurance company (InsCo) to access a “risk pool”. Indeed, HL really is not “providing” health insurance; the InsCo is. Rather, since the employees also pay premiums, HL is subsidizing their employees access to insurance; and is not “buying” insurance.

    Additionally, InsCo’s tend to have very large “customer” bases, representing a multitude of businesses, employers, and individuals. In purely simplistic terms, all of those contribute to a single pool from which InsCo’s pay benefits. InsCo’s are, essentially, gambling that they will collect more in premiums than they pay out in benefits.

    1. Given the way the ACA regulates insurance, health insurance isn’t really insurance at all, because they are not allowed to price based on risk.
      The law effectively turned health “insurance” into a pre-paid health maintainance plan.

      Anyway, it’s totally irrelevant since Hobby Lobby feels they are being compelled to act in a way that violates a deeply held belief. That should be all that matters.

      The law has no business mandating that anyone purchase products – period. Starting with the individual mandate, and including the employer mandate. Let alone on other people’s behalf.

      The reality is that as soon as you start forcibly compelling people to perform positive actions, you’re going to find that sometimes those actions violate people’s beliefs.

      That’s why the law should not be in the business of positive compulsion.

    2. And on top of that, the insurance is part of a compensation package for the employee. The idea that business owners are being nice and “paying” for the insurance package is totally false on it’s face.

  32. Re: Religious Liberty Exemption (2/3)
    Even if HL gains an exemption, that only covers their employees. What about AcmeInc who also offers insurance through the same InsCo but does not have an exemption (i.e.: covers ObjectionableThings)? Now, we’ll ignore the fact that once the premiums are paid, the money belongs to InsCo, not HL…

    Both HL and AcmeInc, and their employees, pay into the same pool. The only difference is that HL’s employees cannot access that pool for ObjectionableThings, but AcmeInc’s employees may. Since there is no way to track how whose moneys in the pool is, HL may very well… likely will… in effect “pay” (albeit indirectly), at least in part, for some of AcmeInc’s employees for objectionable things.

    It would be absurd to argue that it violats HL’s religious freedom (to not purchase/engage in ObjectionableThings) is violated when some portion of the money HL pays to the InsCo is used by someone else for ObjectionableThings. How, then, is there any credence in arguing that it does violate their religious freedom when it is their employees using health insurance benefits for ObjectionableThings?

  33. Re: Religious Liberty Exemption (3/3)
    Finally, there is very little difference, functionally (i.e.: how it works), between HL’s (A) employees using their own wages for ObjectionableThings and (B) employees using employer-provided insurance benefits for ObjectionableThings. In both cases, the employee, as a free agent, seeks objectionable products/services. The only differences are in who pays (the employee in A; the InsCo in B) and that B puts more restrictions (only health-care related products/services, etcetera) on how the employees may use the available money (benefits).

    If A does not violate HL’s religious freedom (to not do/buy ObjectionableThings) then it cannot logically follow that B does. Either both violate HL’s religious freedom or neither do.

    1. Read some Thomas Sowell, or Vic Hanson to learn how to explain a concept so it is understood by all.
      The libertarian view should be the same as on abortion. The 300 million given to Planned Parenthood (PP) is not supposed to be used to end a life (abortion).If Gov money pays for the electricity/heat or rent on any building that does abortions – it is in violation.
      I am assuming libertarians believe in the first right of an individual, the right to life! Then comes liberty and the pursuit of happiness.

      1. That is your religious “belief”, if you can not grasp the significance of that, then you have no idea what the word “liberty” means.

    2. Positively compelling Hobby Lobby to hire someone that has a stated objective of having abortions with the money would also violate HL’s religious freedom.

  34. I’m mixed on this essay. I agree that there is no conflict between libertarianism and religious belief (as you say, there are plenty of strongly religious libertarians). And the last sentence is certainly correct.

    But just because granting exceptions to some doesn’t make others less free isn’t sufficient reason for the exception. As you noted, such an approach makes the restriction more tolerable, and thus weakens pressure to abolish it. Why should objections to some governmental policy based on purely religious grounds be legally superior to objections to that policy based on other grounds? If I object to contraception on some basis other than religion, why shouldn’t I have an equal right to exclude it from the insurance policies I offer to my employees?

    The problem stems from a fundamental misunderstanding of the 1st Amendment, a misunderstanding shared by libertarians as well as by our courts. The 1st Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” This simply means that religion should be completely ignored by the government; it should be neither favored nor disfavored. There should be no religious exceptions to general laws, just as there should be no tax exemption or any other special rules for religious institutions. Government should treat religion precisely as it does everything else, neither better nor worse.

  35. Why is this even an issue? The government is forcing an organization to go against it’s beliefs. Freedom of religion is exactly that with the emphasis on FREEDOM. This is exactly the same as a First Amendment issue where a person’s right is protected even if you don’t agree with what he or she is saying. The other thing that I don’t understand is why Catholic organizations are not fighting this too.
    I am not a religious person but when I see a right being infringed upon. I feel that I must act because one day I might be the one being infringed upon.

    1. Try reading the documents that cemented “Religious Freedom” into the Constitutions, both Federal and State. They do not say what you think they say, and they are VERY clear about the intention of said documents.

  36. Very simple answer to a very simple question. Is the employer actually “paying” for the insurance? No. The insurance is one part of the compensation package of the employee. Whether the compensation is made in cash payments, or in perks, it is still compensation. The idea that employers are being “nice” and “paying” for the insurance is the folly of greedy, power hungry employers and the fodder of the naive.

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