Caleb Brown: This is the Cato daily podcast for Wednesday, May 18, 2016. I’m Caleb Brown. When the Little Sisters of the Poor this week earned their small victory against mandates built into Obamacare, that was just one of the potentially thousands of conflicts between religious liberty and government power. Jay Richards is executive editor of The Stream and professor at the Catholic University of America. We spoke this week.
I think it’s startling or maybe even bothersome or at least causes some dissonance to hear people say this phrase which is religious liberty and economic liberty are not just closely related but in some cases they are the same thing.
Jay Richards: Yes.
Caleb Brown: And you’re Catholic?
Jay Richards: I’m Catholic, yeah.
Caleb Brown: I’m a Quaker and there are substantial implications for religious liberty when the government decides that some measure of economic liberty has to be curtailed for the greater good, whatever that is. So how do you look at that?
Jay Richards: I think it’s exactly right. I mean even just at a common sense level. I mean if the government is telling you what job you have to get, how much you have to pay your employees, how much you have to, by law, be paid - ends up essentially dictating a lot of your really basic decisions and at some point, I think, just commonsensically that is going to begin to infringe on your religious freedom as well as your economic freedom. A couple years ago I started doing research on this, and I have an article coming out - it’s not yet published - in which I essentially compared the indices for economic freedom which are very well-developed and then found a couple of organizations, The Pew Charitable Trust and a couple of others, that had done at least rough and ready indexes for religious freedom and if you overlay, you know, the Index of Economic Freedom in the world or Heritage’s index with the religious freedom, you find something that’s not all that surprising but it’s important, and it’s this: Those countries that have the most economic freedom also have the most religious freedom and those that have the least economic freedom also have the least religious freedom. And so that tells you at a macro level of 180 countries that these two types of freedom correlate and are probably connected in various ways that we might not notice, so that I think a lot of people and a lot of Americans may be passionate about economic freedom but not religious, or vice versa, when in fact, no - if we are really thinking long-term we’ve got to hold these things together.
Caleb Brown: Freedom of association is an economic freedom. It is a religious freedom.
Jay Richards: Right.
Caleb Brown: And that freedom of association, just that core concept…
Jay Richards: Right.
Caleb Brown: …really has taken a beating in the last few years.
Jay Richards: It has. I mean, and of course, that freedom of association is the thing that is prior to both religious and economic freedom, you know, the forming of religious communities or the forming of business communities in terms of, you know, family businesses or large corporations. But it’s hard for people to get fired up about freedom of association. You’re not going to get 100,000 people outright for a march for freedom of association, that’s the abstract concept. But I think, I mean, the most obvious recent event would be what’s happened as a result of the so-called Affordable Care Act. Of course, we’ve, in the U.S. here for the last couple years, have seen this battle between the administration and the Little Sisters of the Poor, which is a Catholic, religious organization of women religious who dedicate their lives to helping the elderly poor. But because they don’t restrict who they help, that is they will help non-Catholics, the administration decided no, we’re not going to give you a religious exemption - the same one we gave to the Exxon Corporation - I mean literally that’s how bad it is. And so you know, okay, if the President is fighting against the Little Sisters of the Poor, almost certainly something weird has happened here, and, you know, and what happened is in the Affordable Care Act everyone that analyzes the economics of the healthcare debate knows the problem is largely the result of so-called third payer problem. That is, you’ve got way too many regulations and entities between the customer, that is the patient and the doctor. You want to solve that, you need to get more market reforms and get the third-party payer out of the middle. Well, what the Affordable Care Act did is actually crammed - made the crowd between the patient and the doctor much, much larger, so 300,000 words in the bill and its reconciliation. So far, as of 2016, there have been 11 million words of regulations written as a result of the Affordable Care Act. So the idea that 11 million words of regulation dealing with this intimate relationship between the doctor and her patient is not going to have religious implications is really absurd, and that’s why it’s quite frustrating to think that there are a lot of Christian and religious organizations, including the U.S. Conference of Catholic Bishops, who, at least behind the scenes, supported the Affordable Care Act, I think not realizing the implications for religious freedom that were coming down the pipe. There’s good news, at least, temporarily. Just this morning I actually heard Sister Constance Veit, who is the spokesperson for the Little Sisters of the Poor and we just heard, actually, yesterday, that the Supreme Court had vacated the case - essentially the lower court cases that the Little Sisters were contesting went to the Supreme Court and the Supreme Court essentially said okay, the government had admitted that there were other things they could have done to have allowed the Little Sisters an exemption. And so basically the Supreme Court has vacated the prior court judgments and sent it back, so I think this is a temporary victory. I think the court is signaling that no, in fact, the government really commonsensically should figure out how to allow the Little Sisters not to be compelled to provide abortifacients in their healthcare, which is bizarre. These are all, mostly elderly, and all celibate sisters, and so it’s not as if they would ever even need this provision, and yet the administration dug in its heels. It’s almost a point of principle to force the Little Sisters of the Poor to provide these things and to do things that directly violate their conscience. I think that’s crucial. We’re not just talking about some vague but morally neutral inconvenience. We’re - the government is saying, no, we have a compelling interest in forcing religious sisters to violate their conscience. And that’s quite staggering.
Caleb Brown: It’s also interesting that you know to that one of the fights here is over whether or not the Little Sisters of the Poor, as many other religious organizations do, are providing help to people who are not a part of their actual group…
Jay Richards: That’s right.
Caleb Brown: …which many faith traditions demand that you do.
Jay Richards: That’s right! That’s what’s so strange, that essentially if the Sisters had just not allowed, say, an elderly Methodist, to come in - oh, I’m sorry, you’re a Quaker? Oh no, we can’t help you. If they had had that rule they could have gotten an exemption, but because they don’t have that rule, because they are open to anyone, any elderly or poor that needs their help, that’s cost them. That’s cost them hundreds of thousands of dollars and years of grief in the American legal system.
Caleb Brown: But the problem isn’t that they are making that choice to provide not provide, in my estimation, the problem is that the feds have said we are going to determine what defines your faith.
Jay Richards: That’s exactly right. That’s what’s so bizarre. The implication is that the federal bureaucracy is the entity most competent to determine what a religious faith is. It’s just a very strange claim.
Caleb Brown: Of course Congress passed the Religious Freedom Restoration Act. It was signed into law by Bill Clinton. That law has been used to protect a very wide variety of activities…
Jay Richards: Right.
Caleb Brown: …most out there for most people would be the consumption of hallucinogens.
Jay Richards: Right! That was the issue at the time.
Caleb Brown: And it was an important case, because, you know, that is a matter or religious freedom.
Jay Richards: Yeah, right. You know, what’s funny is, of course, that the Religious Freedom Restoration Act in the 90s, it was bipartisan support, it was uncontroversial. Now it has become quite controversial. And it usually has something to do with marriage or sex or something like that and it’s unfortunate because what’s happened is that people’s questions about whether they support same-sex marriage or not, it’s gotten swept up in that debate, whereas I think, whatever you think about that, we ought to be able to agree, and twenty years ago I think most Americans could agree, that people shouldn’t be compelled to do things that directly violate their conscience if there’s some better way to go around it. So the issue in the case of, you know, the baker - the bakers in Washington State who didn’t want to be involved in same-sex marriage ceremony in terms of providing it, it wasn’t a question of them refusing people, lesbians or gay men that came into their store. It was simply that they said no, we - that’s not our problem. Our problem is not that we’re going to refuse service, per se, we just don’t want to be involved directly in this event that violates our conscience. And I don’t know - that’s not that complicated of a distinction. I mean everybody recognizes the distinction when it comes to Bruce Springsteen, right? No one thinks, oh, Bruce Springsteen should now be forced to go to North Carolina. No one thinks that but nevertheless the florists and the bakers must be brought to heel on this thing and I just think we’re getting to the point in which the definition of religious freedom ends up being something like, well you’re free to believe something privately inside your head as long as it has absolutely no public implication for your actions. And that that point, you know, the People’s Republic of China has that kind of religious freedom - I don’t think that’s what the founders had in mind.
Caleb Brown: If you are compelled, whether you are evangelical or not evangelical, to behave in a way that is consistent with the instructions that you receive from your, the faith tradition…
Jay Richards: Right.
Caleb Brown: …the one you’ve chosen, it is impossible for you not to, I would think, over time, not bump up against government power in your living expression of your faith.
Jay Richards: Absolutely, and unless the government simply sticks to the things that are its core competence. Unfortunately we long ago left that trail and we’re off on an obscure tributary in which the government is involved in all sorts of things that I would argue just simply, not only not its core competence, but are inevitably going to violate both economic and religious freedom.
Caleb Brown: Jay Richards is executive editor at The Stream and author of Money, Greed, and God. This month marks ten years of the Cato daily podcast. Subscribe and share at CATO.org/podcast and follow us on Twitter, @CATOpodcast.