Today, Hobby Lobby will make its case before the Supreme Court, maintaining that it should not be coerced by federal mandate to use its employee insurance programs to facilitate the purchase of certain birth-control devices that it regards as being more akin to abortion than to contraception. About the legal and technical questions, I have little to add to what Ed Whelan and other legal scholars writing here — all of them far more knowledgeable than I — already have written, except to note that it strikes my non-specialist’s sensibility as being self-evidently true that the Affordable Care Act fails to meet the relevant criterion in the Religious Freedom Restoration Act: that in those cases in which the federal government can demonstrate a compelling state interest in burdening the free exercise of religion, it must choose the least restrictive method of doing so. The English major in me has trouble getting the words “least restrictive” to jibe with “federal mandate.”
One of the finest books ever written about politics is The Once and Future King, in which young Arthur, not yet king, is transformed by Merlin into various kinds of animals in order to learn about different kinds of political arrangements: Hawks live under martial law, geese are freewheeling practitioners of spontaneous order, badgers are scholarly isolationists, and ants live under totalitarianism, with T. H. White famously rendering their one-sentence constitution: “Everything not forbidden is compulsory.”
Consider the case of the legal and social standing of homosexuals. Until just over a decade ago, homosexual intercourse was a crime in many jurisdictions. Then in 2003, the Supreme Court overturned the sodomy laws in Lawrence v. Texas, which was in my view a bad decision with a good outcome. That same year, California considered a civil-union law, which was the source of some controversy. Opponents argued that it was a step toward the much more serious issue of gay marriage, and Democrats rejected that as a red herring: “Nobody is talking about gay marriage,” said John Longville, a Democratic assemblyman, “except the people who are trying to wave it around as a straw-man issue.” Within five years, that straw man was flesh and blood. Along the way the conversation changed from whether states could legalize gay marriage to whether states could prohibit it, and from whether the federal government should recognize same-sex marriage to whether it could refuse to do so. The Democratic governor of Kentucky says that he desires the Supreme Court to “bring finality and certainty to this matter,” which, given his party affiliation, is a way of saying without saying that he wants a national legal mandate for gay marriage. And the matter already has progressed to the point at which we as a nation, having only recently legalized gay marriage, are debating the question of whether bakers and photographers should be locked in cages if they decline, for their own moral or religious reasons, to participate in gay weddings.
“Everything not forbidden is compulsory.”
I make a pretty poor puritan, though perhaps someday I’ll make a better one. I object to abortion as violence, including abortion actuated via relatively bloodless chemical means, and believe that it should be prohibited as a matter of humane principle. The use of actual contraceptives, such as condoms, and the question of what combinations of consenting adults do what with whom — by which I mean maintaining joint bank accounts and sharing dental plans, of course — may be of acute interest to the bishops but are not properly matters of prohibition by the federal government, the purpose of which is to protect property, thus enabling Americans to organize their lives as they will, rather than to move citizens about like chessmen on the theory that it does so for their benefit. There is not much that I would have be illegal — but any civilized society requires a great deal of breathing room between forbidden and compulsory.
The Left would not have it that way: Homosexual behavior is not to be tolerated, or homosexual unions recognized under law — rather, homosexuality is to constitute a special class of blessedness, and the failure to celebrate it is to be a sin, which in the liberal mind must be identical to a crime. It is not enough for religious conservatives, such as the ones who own Hobby Lobby, to tolerate the legal sale and use of things such as the so-called morning-after pill — rather, they are expected to provide them at their own expense. Abortions are not to be legal, but legal and funded by the general community, with those funds extracted at gunpoint if necessary.
This is not merely, or even mainly, a question of economics. A monthly dose of emergency contraception (which seems like a lot) paid entirely out-of-pocket would run less than the typical cell-phone bill. One does not suspect that Americans would find it very difficult to locate gay-friendly firms in the wedding-planning business. The typical first-trimester abortion costs less than an entry-level iPad — hardly an insurmountable economic barrier for a procedure that is, if we take the pro-choice side at their word, absolutely fundamental to a woman’s health and happiness.
The economics are incidental. The point is not to ensure that we all pay, but that we are all involved.
The Left may be morally illiterate, but it is not blind. The effects of the pathologically delusional tendency that once styled itself “the sexual revolution” are everywhere to be seen. In the 1960s and 1970s, our cultural discourse was dominated by the benefits side of that revolution’s ledger; since then, we’ve had sufficient time to have a good long look at the cost side, too, and the tradeoffs are more severe than our bell-bottomed Aquarian prophets had predicted. It reads like an Old Testament genealogy: Sexual chaos begat family chaos, family chaos begat social chaos, social chaos begat economic chaos, economic chaos begat political chaos. And so the generations unfold. The relevant political reality is that those costs and benefits are not distributed equally: The benefits of license accrue mainly to the well-off and educated, who have the resources to make the most of their enjoyment of them; the costs accrue mainly to the poor, who cannot afford to live, economically or morally, beyond their means. Kate Moss can afford to be a single mother in her $20 million London townhouse. Not everybody can. Our so-called liberals find themselves in the queasy position of having created a moral culture that has destroyed millions of lives and many communities among the very disadvantaged people they claim to care most about, but they are incapable of criticizing a culture of license that none of them can imagine living without, even if they themselves are square as houses in their sexual habits.
The result of that is, if not guilt, at least a nagging awareness that this all turns out to be a great deal more morally complex than our liberationist-latitudinarian forebears had imagined. The way to assuage the collective liberal conscience is to institutionalize and normalize liberal social preferences: There is nobody to be blamed for social anarchy if that’s just the way things are. And if everybody is involved — as taxpayers or as employers providing health insurance — then everybody is implicated. They are a little like those addicts who are uncomfortable in the social presence of abstainers, taking that abstention as a rebuke, whether it is intended as one or not. In the United Kingdom, the government-run hospitals are burning the corpses of aborted children for heat, and we are all expected to get cozy by the fire.
The Hobby Lobby case is in part about private property and whether we are to have it. If we hold capital only at the sufferance of the politico-sexual whims of those who hold power, then we do not really hold capital at all — we only rent property from our rulers, serfs in the world’s most sophisticated fiefdom. The property right is the fundamental right upon which all other political rights have their foundation. But there is a separate question — the right of conscience, which is, at minimum, the right not to be implicated, to at least stand apart from that which is no longer forbidden but is not yet, as of Tuesday morning, compulsory.
— Kevin D. Williamson is roving correspondent for National Review.