The First Amendment protects religious freedom, the primary argument against the Obamacare contraception mandate. The same amendment also protects freedom of association, mentioned nowhere in the legal case against it.
Hobby Lobby supporters gather outside the Supreme Court in Washington, D.C., March 25, 2014. The Supreme Court heard arguments over whether corporations can refuse to cover contraceptive services in their employees' health care for religious beliefs. (AFP/Brendan Smialowski)
So some libertarians -- who generally oppose the mandate -- are not entirely of one mind on the legal basis of the challenge in the Hobby Lobby case awaiting a decision by the U.S. Supreme Court.
“As a lawyer, I have to argue on what we have, and with the Religious Freedom Restoration Act, we have a stronger chance of prevailing than with an argument over freedom of association or even economic freedom,” said Ilya Shapiro, an attorney with the Cato Institute, a prominent libertarian think tank. Shapiro filed a brief in the Hobby Lobby case.
“We value all liberty, including religious liberty,” Shapiro told TheBlaze. “So this was a no-brainer for us.”
To be sure, no libertarians are publicly advocating for the Obamacare mandate that requires employers to provide coverage for contraception methods that some employers say violate their religious beliefs. However, some libertarians have expressed misgivings about carving out an exemption based only on religious freedom.
“One depressing feature of the misguided constitutional debate over Obamacare was that it started from the common assumption that any general ‘freedom of contract’ objection to the statute was dead on arrival. This dubious premise warps the entire constitutional discourse,” wrote Richard Epstein, a New York University law professor and senior fellow at the Hoover Institution.
“A robust interpretation of freedom of association blocks the contraceptive mandate, not just for religious organizations, however defined, but for every group, regardless of its purposes or members,” Epstein said. “Any group that wants to supply contraceptive services is of course free to do so. But any group that opposes the mandate is free to go its separate way. Civil peace is preserved because no one faction or interest group can out-muscle any other."
The Economist this week picked up on libertarian activists backing Hobby Lobby, despite the historical divide between libertarians and the religious right on a number of matters.
In Cato's Supreme Court brief, Shapiro asserted a strong tie with religious freedom and an individual’s prerogative.
“These individuals do not check their religious values at the office door,” the brief said. “Indeed, this court has recognized repeatedly that an individual may ‘exercise’ religion in virtually every phase of life. For many people, religion determines the school they attend, the food they eat, the person they marry, and the place they work. It dictates how they lead their lives, how they raise their children, and how they are mourned when they die.”
But even within Cato, there seems to be concern about what the court ignored. Roger Pilon, director of Cato’s Center for Constitutional Studies, contends that the court ignored what he thought should be a basic premise: that employers and employees should be free to enter into contracts without government.
“Thus have we come to a point at which religious liberty is recognized, if it is, as an exception to the general rule that government may require us to act as it dictates—and we have to be careful not to extend that accommodation too far lest it gobble up the rule,” Pilon wrote on Cato's blog. “That’s a remarkable inversion of First Principles: government first, liberty second, as a limited exception.”
Though allied on many issues, religious conservatives and libertarians have long had suspicions of each other. Libertarians are divided on the abortion, and generally have varying and nuanced views on same-sex marriage, ranging from allowing states to decide to opposing all government recognition of any marriage.
Ayn Rand, a key intellectual leader in the libertarian movement, was openly hostile toward faith. But Shapiro told TheBlaze there is no collective libertarian attitude toward religion.
“Some libertarians are religious, some libertarians are fundamentalist, some libertarians are agnostic,” Shapiro said. “Some are hostile to religion. Some are very religious.”
He said that Sen. Rand Paul (R-Ky.), a likely 2016 presidential contender, is an interesting example, routinely making the case that libertarian doesn't mean libertine.
“Rand Paul is the first person of national prominence who can speak libertarian and evangelical,” Shapiro said. “He has definite appeal to both groups.”
A forum at the International Students for Liberty Conference in February stressed a biblical case for libertarianism. The panel referenced several scriptures, including 1 Samuel 8 to explain the biblical description of government, where the prophet Samuel warned the people of Israel that the king they were demanding would rule over them in an oppressive way.
While reluctant to endorse a biblical case, Shapiro said advocates of limited government recognize the limits of people in power.
“Nobody’s perfect is the secular take on man’s fallen nature,” Shapiro said. “Government is no more or no less perfect than the private sector. Government actors respond to the same motives as private sector actors.”
Without government intervention – in this case over the Obamacare contraception mandate – there would be fewer divides among Americans, Shapiro argued.
“Ultimately, the more government intervenes and tries to regulate lives, the more cultural clashes we’ll have,” Shapiro said. “There is no reason to have a battle over religious liberty and women’s liberties.”
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