What Explains the Reaction to Hobby Lobby?

by Mark Movsesian

McArdle says three factors are involved. First, the left cannot understand why religion should merit this sort of deference. Although “the religious right views religion as a fundamental, and indeed essential, part of the human experience,” she writes, “the secular left views it as something more like a hobby.” For the left, therefore, “it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts.” In fact, although McArdle doesn’t put it this way, the Court has allowed religion to interfere with sex, which really is “a fundamental, and indeed essential, part of the human experience.” It just seems crazy.

Second, about coercion. From the classical liberal perspective, in which rights are principally negative rights, the Hobby Lobby case does not involve coercion. As McArdle writes, “How is not buying you something equivalent to ‘imposing’ on you”? But if we consider that our society confers many positive rights as well as negative ones, the situation becomes much more complicated:

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

Third, she writes, the classically liberal distinction between the state and civil society has broken down. Classical liberalism accepted a large public space that did not belong to the government. Now, however,

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

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

McArdle agrees with the Hobby Lobby decision, by the way (as do I), which makes her willingness to see things from the opposite perspective all the more welcome. Read the whole thing.