In July, Georgetown law professor Michael Seidman and I had parallel op-eds in the Washington Times regarding religious objections to providing services to same-sex weddings. This wasn't a point-counterpoint--neither of us saw the other's writing before publication--but the Federalist Society invited us to respond to each other on its new blog. Seidman declined, but here's my response.
Professor Seidman fundamentally misunderstands the paradigm here. When people object to
Obamacare Robertscare mandates or to facilitating same-sex weddings, they aren’t objecting to society’s basic laws or impeding government. Instead, they’re demonstrating the inherent social clashes that the government itself creates when it expands beyond legitimate bounds.
In other words, Seidman is correct to note that society couldn’t function if people decided they didn’t have to obey criminal laws—whether against murder or illegal left turns—but it can function very well indeed without forcing people to
buy pay a “tax” for not buying health insurance. Seidman is likewise absolutely right that the government couldn’t fund itself if people could withhold tax dollars to the extent they object to federal programs, but nobody is hurt if a gay couple has a choice of 99 instead of 100 wedding photographers.
Yet Seidman sees no difference between regulations that ensure public safety and those that ensure politically correct attitudes, between generally applicable laws and those that redistribute income. It seems that in Seidman’s world, people have no rights or liberties other than those which the government deigns grant them.
From that worldview, a statist noblesse oblige could deign allow small deviations to placate eccentric superstitions, indulgences purchased for a token dhimmi tax. What’s a little freedom of conscience between friends?
Too many Americans have become so accustomed to government authority that resisting state action looks anomalous. The right to freely exercise religion—not just to worship—is thus an exception to the general rule of government power.
The cultural flashpoint surrounding wedding vendors’ pleas for toleration is evidence of a more insidious process whereby the government foments social conflict as it expands its control into areas of life that we used to consider public yet not governmental. These conflicts are exceptionally fierce because, as Bloomberg View columnist Megan McArdle put it, “the long compromise worked out between the state and religious groups—do what you want within very broad limits, but don’t expect the state to promote it—is breaking down in the face of a shift in the way we view rights and the role of government in public life.”
Indeed, it’s government’s relationship to public life that’s changing—in the places that are beyond the intimacies of the home but still far removed from the state, like churches, charities, social clubs, small businesses, and even “public” corporations that are nevertheless part of the private sector. Under the influence of the Obama administration, the Left is weaving government through these private institutions, using them to shape American life according to its vision.
Again, the key to this far-reaching agenda is the conceit that the government grants fundamental rights. In the Hobby Lobby case, the government and dissenting justices essentially argued that the rights that Hobby Lobby’s owners asserted weren’t inalienable or natural ones, but privileges bestowed by the grace of government.
Through an ever-growing list of mandates, rules, and “rights,” the government is regulating away the “little platoons” of our civil society. That civil society, so important to America’s character, is being smothered by the ever-growing administrative state that, in the name of fairness and equality, takes away rights in order to standardize life from cradle to grave.
No, Professor Seidman, what we have here isn’t merely “strong and sincere conscientious scruples against obeying generally applicable and democratically enacted laws.” And the solution isn’t “compromise” but vigilance to ensure that government doesn’t needlessly violate our most basic freedoms.
[cross-posted at the Federalist Society blog]