Confusion Plagues the Right: Why It Doesn’t Understand Liberal Views of the Hobby Lobby Case

Conservative columnist Ramesh Ponnuru wrote an interesting piece yesterday at National Review arguing that while liberals have constricted their views of the extent of religious liberty over the years, conservatives, though tactically divided, have been consistent on the issue.

The hook for his article is today’s oral arguments before the Supreme Court, in the case that will decide whether corporations should be able to obtain a religious exemption from the ACA’s contraception mandate, and possibly other laws and regulations. He draws on history that’s outside my wheelhouse, but makes an intuitive case –religion has been a consistently dominant force in conservative politics for a long time now, but a smaller, shrinking one in liberal politics.

But I think he both over- and understates my position here:

One response from liberals was that they had not retreated an inch from the defense of individuals’ religious freedoms but were objecting only to the attempt to grant those freedoms to corporations…. [But] the fact is that some contemporary liberals are objecting on principle to exemptions for anyone: My article cited Brian Beutler, and if any liberals have criticized him on this point I haven’t seen it.

He’s referring to a piece I wrote about the evolving tension between religious observers and the expansion of LGBT rights. But he interprets my personal view to be more rigid, in some ways, than it actually is.

So my personal view (for whatever it’s worth) is that I don’t think there’s a very compelling case for the charitable deduction — which props up religious institutions and myriad other non-profits — in general, just like I don’t think there are compelling cases for tax expenditures. Moreover, given the existence of tax-exempt status for churches, I also think it’s morally inconsistent to, for instance, oppose tax exempt status for churches that refuse to perform interracial marriages, but support tax exempt status for churches that refuse to perform same-sex marriages.

However, I realize this is a complex question that touches on religious teaching and pits competing liberties against each other, so I put together some thoughts on where it makes most sense to draw the line in this article. I think Ponnuru would be surprised to learn about all of the exemptions liberals would support, or tolerate.

All that said, it’s hard to overstate the differences between the religious right’s resistance to same-sex marriage and the normalization of same-sex relationships, especially within their religious institutions, and the specific argument that religious business owners should be exempt from the ACA’s contraception requirement, and other generally applicable laws and regulations, within secular ones.

There is a principle at stake here, as Ponnuru suggests. Entrepreneurs, like the owners of Hobby Lobby, are provided innumerable privileges by the public that allow their businesses to thrive, and the price of those privileges is that they have to adhere to public laws and regulations. But vis a vis the contraception requirement in particular, the argument against a Supreme Court ruling in Hobby Lobby’s favor is actually about principle and unintended consequences in equal measure.

Hobby Lobby’s owners have many options if they genuinely don’t want to offer their employees health insurance that covers contraception. They could stop sponsoring insurance for their employees altogether, though this would require giving up one of those costly tax preferences, and possibly paying a steep tax penalty. They could lobby to eliminate the employer mandate or the contraception mandate by statute. They could ask Congress for a limited exemption that would apply to companies, on the condition that they advertise the missing benefit to prospective employees, or push for the creation of a much smaller, subordinate penalty for companies that provide all guaranteed benefits except for contraception. That’s just for starters.

But if they obtain an exemption from the Court on religious grounds, even one drawn very narrowly, the unintended consequences could reach much farther than the relatively narrow dispute over contraception, significantly altering the balance of competing liberties and private interests in secular spaces, and be very difficult to reverse.

Conservatives generally write off this argument, or insist there is no slippery slope (in part, I think, because they share Hobby Lobby’s beliefs about contraception, but do not similarly sympathize with religious employers who might try to limit health benefits in more dramatic ways, or import religious views into their hiring or business practices). But I don’t think many of them have grappled with it forthrightly.

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