In response to Biden’s Talking Points
In my intellectual interactions with progressives, whether in academic settings or through the media, it has been an endless source of fascination to observe their habitual inability to distinguish between negative rights (those that, like the Bill of Rights, protect us from others) and positive rights (those that obligate others to do things for us). Having established some negative right (i.e., the right to access contraceptives or gay marriage), progressives tend instantly to claim a positive right (i.e., the right to force me to pay for their contraceptives, or sing or serve cakes at gay weddings) without stopping to think that there might be at least an a priori difference between a protection from coercion and the power to coerce.
The first time I focused squarely on this myopia was at a conference some time ago in which a law professor said something like, “This is what drives people crazy about conservatives: They’re in favor of the right to bear arms, but not the right to health care.” He thought he was making a clever point, but it might be the least intelligent thing any law professor has ever said in my presence, because what’s meant by the “right to health care” is of course the right to have others pay for your health care if you can’t afford it, whereas no conservative is claiming the right to have others pay for their weapons. (Although, now that I think of it, I do rather love the idea of feminists subsidizing my purchase of a Winchester while I play the victim and insult them for being so stingy about the whole thing, war on men and all that.)
This, I think, is what Ramesh was getting to in his post on that weird secular-humanist devil-worshipping outfit that sued for protection from Missouri’s abortion waiting period on the grounds of their religious belief that “one’s body is inviolable, subject to one’s own will alone.” Amanda Marcotte thinks it was clever, but the Satanists’ argument was legally nonsensical. The waiting period in question doesn’t in any way interfere with the inviolability of anyone’s body. Rather, it regulates their access to a procedure that the Supreme Court has ruled cannot be banned, but which everyone agrees may be regulated. The religious freedom they claim is not in any way impacted by the waiting period, nor can it be, because they’re not being forced to violate their “faith” (as it were) in any way.
But let’s say the Satanists were claiming a religious right to abortion, or indeed — as Ramesh cleverly puts it, making the analogy almost exact — a religious obligation to abort. That still would not establish their right to have other members of society perform their abortion, or even to have society recognize their right to abortion in the first place. Roe v Wade could never have been decided in favor of abortion on religious grounds, even if the prevailing religion believed in abortion. Mormons once claimed a religious right to polygamy, but that couldn’t trump secular laws which prohibited polygamy, because this is not a theocracy. Polygamy may be rehabilitated soon, by piggy-backing on the LGBT movement’s success in transforming marriage from a selective legislative privilege into a dignitary right subject to equal protection – but polygamy will never come back as a religious right in this country, not unless ISIS takes over. The institution of marriage, like abortion, involves other people, and society as a whole, and personal religious freedoms cannot trump the rights or define the obligations of those other people.
This is what progressives simply don’t understand about the Hobby Lobby case, or the more recent gay-wedding-cake ugliness. Nobody in this country (apart from the Satanists in this case) is claiming that religious liberty should trump the law. But our Constitution clearly protects us (or did until recently) from being forced by law to do things that violate our religious beliefs, whether as a condition of engaging in some other activity, or otherwise. The case for such protection should have been strengthened by the privacy rights championed, by progressives themselves, in decisions like Roe.
There must have been a time, though perhaps it was long ago, when people could see the difference between protection from tyranny, and the power to tyrannize, more clearly than they do today. Alas, like progressive policies, society does not always tend toward progress, and modernity has many times opened the door to barbarism.