Mandates, religious freedom, and the strange (hypothetical) case of the Muslim bigot car-shop owner [UPDATED and UPDATED again]
Bill Quick believes me confused. Me, I believe Bill has lost his way. To wit: in an attempt to push back against the religious conscience objections to the government mandating of insurer-provided “free” abortifacients and contraceptives, Bill writes:
So…Allah’s Auto Body, a business owned by the local mosque, refuses to repair Henry Finklestein’s car, because Henry is obviously Jewish, and the Koran requires that Jews be hung, drawn, and quartered, and repairing their cars is forbidden (which is how this particular mosque interprets holy writ). And anyway, Mark Levin’s shop right across the street will happily take his money. You like that logic? You might, but it won’t stand up in any court in America. Separate but equal has been legally dead for more than half a century.
Leaving aside for a moment the question of separate but equal as it is now routinely extrapolated out by some motivated litigant to problematize freedom of association (eg.,should the government be able to tell you to whom you must rent out a room in your own home or privately held property?), the problem with Bill’s example is this: it’s a complete red herring.
And that’s because Allah’s Auto Body isn’t being compelled by the federal government to pay for Henry Finklestein’s repair — but rather, it only requires that, should the business wish to be zoned by the city, for instance, it has to agree that separate but equal is unconstitutional, and that if it wants to repair the cars only of non-infidels, it has to find a place that allows for such behavior, or else arrange its business in such a way that, as a freelance auto-body repair outfit, it picks and chooses the clients it wishes to take on, almost like a kind of auto consultant or body repair agent.
Running a hospital does not suggest you’re in the business of aborting fetuses or handing out contraceptives; running an auto repair shop, conversely, suggests you are in the business of fixing cars. So if a person goes into a repair shop and is denied car-fixing service, he has a discrimination complaint; but if a person goes into a Catholic hospital, that person isn’t being denied service if what she’s looking for is an abortion or a fistful of morning after pills: she’s being told that this particular business doesn’t provide that particular service to anyone.
Meaning that Bill is the one who is confused here. He may find religion inherently illogical and determine that it must be relegated only to churches, but that’s simply not what the founders and framers had in mind when the endeavored to respect religious freedom.
And honestly, would Bill Quick say that the fact that Wal-Mart carries contraceptives but, say, Discount Tire doesn’t, what’s being pushing is some iteration of “separate but equal”? Or, perhaps more fairly, let’s try this: imagine Whole Foods carries organic, locally-grown, free-range beets. My local Albertson’s, on the other hand, does not. Both are food stores. Are beets entitled to separate but equal consideration? Am I being discriminated against because I can’t find organic, locally-grown, free-range beets at Albertson’s? Are the beets being discriminated against?
And how is it different with condoms or abortifacients or even abortions? Why must a Catholic hospital (and note that many Christian organizations are their own insurers to begin with, which further muddies the waters) be compelled to provide and pay for certain products and services that they don’t wish to carry?
This is silly.
What I’ve been at pains to say is that this is an issue that at base is about government seizing power over the individual, and that its decision to target religion was merely a way to distract from the larger aim by creating what appears at first blush to be a social wedge issue. But the larger offensive is being aimed not at religious freedom alone, but rather ultimately at the very idea of individual autonomy itself.
About that there is no confusion.
update: In responding to my post, Bill accuses me of being both dishonest and disingenuous — par for the course these days, really, if you dare take issue with someone supposedly on “your side”. The motivation for the dual indictment is the suggestion that I’m:
deliberately trying to make it appear that churches are being forced to provide these things. They aren’t. You squawk about category errors while you merrily lie your heads off by omission.
But their was no omission, just a disagreement over who gets to claim religious conscience protections under the First Amendment, and who gets to define what the Church would call “charity” or “ministry” as a “business” for purposes not of taxation, but rather for claiming jurisdiction over the very faith that underwrites them.
To say that such conscience exemptions only applies to the Church as a corporate entity (and as proof, to offer that a pair of circuit courts have upheld HHS authority) — and not to individual members of the Church — is to say that religious belief must necessarily cease to exist outside of the cathedral. And though I’m not a religious man, even I understand that many religions don’t believe that their covenant with God begins and ends at the stained glass doors of a church.
As geoffB continues to note, this is a move toward reimagining freedom of religion as freedom of worship, which can then be constrained by logistics. Like the religious equivalent of university “free speech zones.”
ObamaCare requires people be covered. It also requires insurers writing policies — including those Christian insurers who oftentimes insure their own corporate bodies — to provide contraception and abortifacients. Meaning, those items and services are being paid for both by those mandated to provide the policy and those mandated to have coverage.
This is an attack on religious freedom under the First Amendment — and on both businesses and individuals who are being compelled by the State to sell things they don’t want to sell or to purchase things they don’t want to purchase, an attack on individual autonomy that fundamentally redescribes the relationship between the individual and the State.
If this reasoning strikes Bill as somehow disingenuous or designed to attack his sacred honor, I can’t help that. This is my attempt to argue through these dictates — and frankly, I’m finding it hard to believe that the distrust of religion is so strong in many self-professed libertarians that they’re willing to allow that, provided an exemption is offered by the State to corporate entities, religious freedom concerns are moot.
I mean, isn’t this idea of corporate personhood, which we celebrated in the Citizens United ruling, applicable to the people who make up the Catholic church?
update 2: Before telling dicentra to fuck off because her Cornell-trained mind can’t understand rational arguments, Bill stopped to note this, in the comments to his post:
BTW, nobody – including you or Jeff has yet addressed my analogy: if the Catholic Church owned an auto body shop that makes a profit and employees non-Catholics, should it be exempted from obeying this requirement on the basis of First Amendment liberties?
I believe I’ve answered that, but let me try again: in the analogy, is the State mandating that everyone own a car?
Or that the church provide a box of rubbers “free” with each oil change?
Here. Maybe this will help.