C'mon Guys, Hobby Lobby Was A Victory For Religious Americans

I've been knocking down the low-hanging fruit from leftists and the news media for months on Hobby Lobby, and I suspect I'll have more opportunities to do that for months and maybe years (gulp) to come. Yesterday's decision was a victory for religious freedom, but I'm seeing a few commentators for the right, perhaps just out of a sense of contrarianism, suggest that it is not.

For example, I was startled to see this read on the decision from Forbes' Avik Roy:

Roy's linked column suggests:

Pro-life activists—and Obamacare opponents—are cheering today. But when they sit down and reflect, they’ll realize that they haven’t won a thing.

He points out that one of the alternatives Justice Alito suggested to forcing businesses run according to their owners' religious beliefs to provide contraception or abortifacient coverage would be for the government to provide it. Roy thinks that is no victory:

Ah, but who finances the government? Taxpayers. In other words, while the government can’t compel Hobby Lobby to finance abortifacients, it can compel taxpayers to do so. Isn’t that a distinction without a difference?

I objected to this blunt equivalence. There is a vast difference between forcing an individual company to act in a morally objectionable way and requiring all taxpayers to pay taxes that may in some fraction be used in a manner with which the payer disagrees. Roy doubled down:

But even this economic equivalence is wrong for obvious reasons. Forcing a business to bear the entire burden of providing contraception coverage for its employees is quite different than forcing the business-as-taxpayer to pay for a fraction of that contraception coverage. Notably, taxpayers as a group include people who both support, oppose, or are indifferent to contraception coverage. That's an economic distinction, and it's also the foundation of a moral and a legal one.

We do not as a society now believe that the actions of government are morally or legally or economically equivalent to the actions of individual taxpayers and never have. The funding of war, opposed for religious and moral reasons, is the obvious example, but this principle extends to other government actions of dubious moral and religious quality, like funding capital punishment, abortion, property seizures, you name it.

Does Roy or anyone really believe that I am morally or legally or economically culpable for the President's drone assassination program in which civilian bystanders are killed? Of course not. I don't direct the program or have any way of preventing it, and my financial contribution to it is de minimis. Roy's contrarian theory of equivalence would treat pushing the button to kill an anonymous civilian as the same as paying my taxes, an obviously silly claim and one not shared, so much as I can tell, by many others.

Moreover, even for people who believe that fractionally financing objectionable government action by paying taxes comes with an equivalent fractional moral culpability, not having to directly and fully finance the objectionable action has to be counted an improvement.

Thus, upon reflection, yes those of us who support religious freedom really "won a thing" in yesterday's Hobby Lobby decision. As I have written several times, the case was never going to knock down Obamacare, but that wasn't its object. The case, despite what you'll see in the news media, was about religious liberty. And on that basis, Justice Alito's decision was a clear victory.

posted by Gabriel Malor at 10:01 AM

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