But the solution to this problem of special treatment is not for government to deny exemptions to all so that all are equally coerced. Instead, a solution must be found that aligns with the American principle that the state exists to secure and preserve liberty. To wit, government must recognize the right of all individuals to act according to their consciences, which includes, among many other things, the right to run their businesses (and to contract with others, or not) as they see fit. It also includes employers’ being able to decide whether and how much to pay for employees’ health care—and to make these decisions for any reason or no reason at all.
In other words, instead of restricting or repealing RFRA, lawmakers should expand it to cover all of our freedoms. It could be called the Omnibus Freedom Restoration Act, or OFRA—not because religious freedom isn’t special (the religion clauses exist for a reason) but because in this context, it’s just one aspect of the broader “bundle of liberties” under attack.
Of course, the Constitution itself is meant to play this role. Yet attempts by government to enforce a collectivist morality continue, and not just because of the political forces and incentives that drive both elected and appointed officials. The judiciary is also to blame, for being too deferential for too long to governmental prerogatives.
It is beyond the scope of this essay to recapitulate the “long war for control of the Supreme Court,” to use the subtitle of Damon Root’s excellent 2014 book, Overruled—which Kurt Lash reviewed for Law and Liberty here and here, with later exchanges about it with Root—but suffice it to say that the courts are supposed to be a bulwark against the political branches and the administrative state alike. This role includes enforcing constitutional limits on the growth of the federal government’s sphere of influence, as well as steadfastly protecting individual rights against federal or state violation. Playing this role properly requires a judiciary that’s engaged and active, as distinct from either restrained or “activist.”
Hobby Lobby was one case where the Supreme Court stood up for individual rights, especially religious rights—but only under an unusual statutory exemption, and only just barely. The Left’s reaction to the decision shows that there are many people who are perfectly comfortable begging an all‐powerful government to respect their positive rights rather than vindicating their inherent possession of rights that the government can’t legitimately invade in the first place. They’ve lost sight of Jefferson’s admonition that a government big enough to give you everything you want is big enough to take away everything you have. Or, as Madison wrote in Federalist 51, “you must first enable the government to control the governed; and in the next place oblige it to control itself.” That’s exactly what the Constitution’s enumerated powers were designed to do; they’re simply no longer being enforced.
If the Supreme Court were serious about constitutional structure, the Hobby Lobby case—and the religious‐nonprofit cases consolidated under the name Zubik v. Burwell, which it’s considering this spring—would never have existed because nearly the entire Affordable Care Act is a constitutional nonstarter. The same holds for much else that government does to direct our lives, pit groups of citizens against each other, and weaken community ties.
As it is, the courts have not enforced constitutional limits for decades, and so we’re left seeking exemptions, whether under the Free Exercise Clause, RFRA, or elsewhere. As Georgetown law professor Randy Barnett has said, all these special carve-outs—for individuals, for classes, even for states—are just an attempt to impose external constraints on government that are supposed to compensate for the evisceration of the Constitution’s internal limits. Passing the omnibus freedom‐restoration act I mentioned would really be the equivalent of adding the phrase “and we mean it” to the end of every constitutional provision.
The most basic principle of a free society is that the government can’t willy‐nilly force people to do things that violate their consciences. Americans understand this point intuitively. Some may argue that in Hobby Lobby there was a conflict between religious freedom and reproductive freedom, so the government had to step in as referee—and women’s health is more important than minority religious preferences. But that’s a false choice, as President Obama would say. Without the federal Health and Human Services rule, women are still free to obtain contraceptives, abortions, and anything else that isn’t illegal. They just can’t force their employer to pay the bill.
If you conceive of rights properly, there’s no clash of personal rights in any circumstance other than when the government declines to consistently recognize and protect everyone’s rights equally. The problem that the Hobby Lobby ruling exposed isn’t that the rights of employers are privileged over those of its employees. It’s that no branch of our federal government recognizes everyone’s right to live their lives as they wish in all spheres. Instead, all people are compelled to conform to the morality that those in charge of government have decided is right.
We largely agree—at least within reasonable margins—that certain things are “public goods” whose provision falls under the government’s purview, such as national defense, basic infrastructure, and clean air and water. But social programs, economic regulation, and so much else that government now dominates at the expense of individual liberty and responsibility are subjects of bitter disagreements precisely because these things are individual freedoms, and we feel acutely, as Americans, when our liberties have been attacked.
The trouble is that when government is the body that grants us freedoms instead of the one that protects them, it becomes much less clear exactly what those freedoms are. As time goes on, every liberty we thought we had is up for discussion—and regulation. Those who supported the owners of the Oklahoma‐based Hobby Lobby stores before the Supreme Court were rightly concerned that people are being forced to do what their deepest beliefs prohibit. But that’s all part of the new, collectivized territory.
Kathleen Brady’s rethink of “the distinctiveness of religion in American law” is a masterful text that should be read by every law student and student of public affairs. I just wish it hadn’t been necessary for her to write it.