Birth Control

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.