In the wake of the Hobby Lobby decision, argument on the issue has raged with heightened vehemence. Buzzwords abound in the debateequality, imposition, right, discriminationand the equivocation at work makes the fallout increasingly polemical. One term that has shared in the general collapse of meaning is “freedom” or “liberty.”
On the one hand, the corporations suing for exemption assert their 1st Amendment freedom for the exercise of religion, and with RFRA ready-at-hand, have asserted their right to “less restrictive means.” On the other hand, those who oppose the exemption argue that “Everyone has the right to his or her religious beliefs, but those beliefs cannot be imposed on others.” On these terms, religiously motivated obstruction to a manifest right amounts to an assault on women’s freedom to control their reproductive lives, and in turn hampers their access to an equal participation in the economic and social life of the nation (See Ginsburg’s dissent).
Clearly, the concept of freedom is being employed at cross-purposes. Both use non-coercion as paradigm for freedom. They agree that the government should police attempts of one body in the civil polity from foisting a sectarian understanding of human nature on their own political praxis. The government’s role is to provide the space wherein these respective freedoms can cohabit a marketplace of faiths and reasons with minimal sources of tension. Where they disagree is in the application of this policing.
Those who lament last week’s ruling see the decision as favoring one so-called freedom for a more universally recognizable one. Bracketing efforts for a successful gerrymandering of payment options, advocates for coverage of the controverted abortofacients register the ruling as the preference for one freedom over another more precious one:
The ruling sends a strong message that women’s health and women’s rights as individuals and employees do not matter as much as so-called religious liberty.
Despite the historical significance and prominent place of free exercise in the Constitution, some reacting to the claim can see the ruling as nothing short of caprice or even bigotry:
To sum it up, five male justices ruled that thousands of female employees should rightfully be subjected to the whims of their employers. That women can be denied a benefit that they already pay for and is guaranteed by federal law. That contraception is not essential healthcare. . . .
Those who celebrate Monday’s ruling see it as just the opposite.
In their argumentation, both parties acknowledge, though perhaps not explicitly, some hierarchy of goods, which looms in the background of their respective claims. As we have come to discover, non-coercion is an insufficient paradigm to explain the full breadth of freedom. Without an objective content to freedom-based claims, the debate is likely to devolve into “sound and fury, signifying nothing.” The current debate seems headed in that direction:
A country that cannot even agree on the idea of religious accommodation, let alone on what terms, is unlikely to agree on what to do next. . . . And a nation whose marketplace itself is viewed, for better or worse, as a place to fight both those battles rather than to escape from them is still less likely to find surcease from struggle.
Unless we are able to intelligently discuss why goods of free exercise or traditional marriage, for instance, represent a greater good for man and the civil polity at large, we lack the means to evaluate the merits of opposing claims. Last week, the Supreme Court recognized the right of free exercise (with qualification) in such a way as to delimit the supposed right to universally accessible healthcare with all its contraceptive options. As more and more Americans begin to identify as “nones” and religious-based claims are relegated to the status of shrill retrogressive screed, we are more deeply endangered by the vacuity of freedom-based claims. Our discourse must put listeners back into touch with the goods for which freedom is free, the content of our claims, so that situated on the firm footing of objective realities we may stand fast and not “submit to the yoke of slavery.”