Art Carden  

IFWE on Hobby Lobby and the False Divide Between Sacred and Secular

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I wear a hat as a Senior Research Fellow for the Institute for Faith, Work, and Economics. In the last several days, IFWE has run a few pieces on their blog that have really stood out to me in light of the Hobby Lobby decision and how we categorize human action:

In "Hobby Lobby: A Victory for Religious Freedom and the Christian View of Work," theologian Hugh Whelchel explains the error of separating the "sacred" (what you do at church on Sunday) from the "secular" (what you do M-F, 8-5 at the office). If we really believe something to be good and right, it will find its expression in how we live our lives. Just as one's First Amendment rights don't stop at the schoolhouse door, they don't stop when we clock in.

Whelchel links to an insightful 2012 post, "Religious Liberty vs. Religious Tolerance" in which he reproduces Wesley J. Smith's summary of a government argument that "Seeking profit is a wholly secularist pursuit" (Smith's words). Here is Whelchel on James Madison, George Mason, and the Virginia Declaration of Rights:

It was James Madison who suggested the term 'religious liberty' to George Mason, chief architect of the Virginia Declaration of Rights in 1776. In the first draft, Mason used the term 'religious tolerance.' 'Religious tolerance' was understood as permission given by the state to practice religion.

The problem with religious tolerance was that what the state gave, it could take back.

Madison argued that religious liberty was a natural and unalienable right. It was possessed equally by all citizens, and must be beyond the reach of civil magistrates.

It was, in Whelchel's words, "a revolutionary idea." Religious tolerance suggests a right granted by the state that can be rescinded. Religious liberty suggests a right that precedes the state and that cannot be violated. If it is a right that is going to mean anything, then it has to extend to how we conduct the ordinary business of life.

This brings me back to one of my favorite pieces in the social sciences, a piece that surely has a higher neurons-blown-to-word-count ratio than anything else I've ever read, James Buchanan's "Order Defined in the Process of Its Emergence." There's no way to know the right level of health coverage, whether birth control should be covered, and whether making business decisions on the basis of religious principles is a good or bad idea a priori. Free societies comprise an infinite array of experiments. Attenuating the experiments through force short-circuits the emergence of order and leaves us poorer--materially, spiritually, and socially--than we would otherwise be, and in no small part because we are using violence or the threat thereof to force others to act against their deeply-held beliefs.


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COMMENTS (9 to date)
MikeP writes:

If we really believe something to be good and right, it will find its expression in how we live our lives. Just as one's First Amendment rights don't stop at the schoolhouse door, they don't stop when we clock in.

While I concur with not artificially segregating the secular from the sacred, the above is a non sequitur.

Indeed, if Hobby Lobby made the mistake of hiring an employee who believed it good and right to end every conversation -- even with customers -- with "Hail Satan", I trust we'd all agree that he doesn't have any First Amendment right to behave that way when he clocks in.

The issue in the Hobby Lobby case is that the owners are being asked to use their resources and ultimate decision making authority in a way that violates their religious beliefs. The argument cannot be stretched to anyone who clocks in.

David R. Henderson writes:

@MikeP,
I trust we'd all agree that he doesn't have any First Amendment right to behave that way when he clocks in.
True, because he doesn’t have a right to that job. It’s symmetric. If he finds Hobby Lobby owners’ views offensive, he need not work for them. If Hobby Lobby’s owners find his views offensive, they need not hire them.
The issue in the Hobby Lobby case is that the owners are being asked
They weren’t being asked. If they had just been asked, not told, this would not have gone to court.

MikeP writes:

I completely agree that he doesn't have a right to that job. But should he accept that job, he must also accept any limitations on his rights to free speech or religion that the employer chooses to make while he is on the clock. Hence his First Amendment rights do stop when he clocks in, so long as he chooses to clock in. It's the owners' First Amendment rights that don't stop.

But you are very correct that "asked" is inaccurate. Even "told" is a bit weak given that the ultimate newspaper headline is not "Business Owners Killed Resisting Arrest over ACA Mandate", but rather "Religious Zealots Die In Standoff".

Grant Gould writes:

I broadly agree, but I'd like to point out one interesting point.

If as you quote "religious liberty was... possessed equally by all citizens", that's hard to square with most modern religious liberty movements and with RFRA, both of which forswear the notion of any protections for atheists.

If the trouble is as you say "using violence or the threat thereof to force others to act against their deeply-held beliefs", there is no reason that that should be restricted to beliefs that are theistic or otherwise supernatural in nature.

Rather, avoiding using violence to drive people against deeply-held beliefs is simply liberty. The word "religious" is a distraction.

MikeP writes:

Rather, avoiding using violence to drive people against deeply-held beliefs is simply liberty. The word "religious" is a distraction.

This is an excellent point.

In fact, going back to the original article...

It was, in Whelchel's words, "a revolutionary idea." Religious tolerance suggests a right granted by the state that can be rescinded. Religious liberty suggests a right that precedes the state and that cannot be violated.

...religious liberty as opposed to religious tolerance is frankly not in and of itself a particularly revolutionary idea: It is entirely derivative from the principle of unalienable individual rights. Both Madison and Mason were well aware of what they were trying to express, thus the choice of words is simply an exercise in accurate vocabulary.

Indeed, libertarians use 'right' to mean something "granted by the state that can be rescinded" at their epistemological peril. Use the words 'entitlement' or 'privilege' if it can be rescinded -- the former if it should be generally granted, such as the "right" to vote, and the latter if it is an outright gift, such as the "right" to employer provided birth control.

ThomasH writes:

@MikeP

The issue in the Hobby Lobby case is that the owners are being asked to use their resources and ultimate decision making authority in a way that violates their religious beliefs.

Not at all. Hobby Lobby is being asked NOT to inject its religious beliefs into deciding what coverage the in-kind portion of it's employees' wages that goes to purchase health insurance is used for. The firm seems to suffer from the naive belief that it is "providing" a "benefit" to its workers out of the goodness of its religiously softened heart.

This is basically a corporatist idea but one that I'm surprised gets attention in a blog read and written by economists who understand and value how markets work. No one associated with this blog surely would dispute that the distinction between the worker's portion and the employer's portion of the payroll tax (except a small tax advantage to the worker of the employer "paid" a portion of the tax) is wholly arbitrary and meaningless legal fiction.

Even the NYT gets it:

http://www.nytimes.com/2014/07/03/upshot/the-illogic-of-employer-sponsored-health-insurance.html?partner=rss&emc=rss

I can understand the the owners of a closely held a firm making th error. (I could even understand the Catholic Bishops making in the summer of 2012.) I was quite surprised, however, that SCOTUS fell victim to the error, so much that the neither the majority, concurring, or dissenting opinions even explained why they thought it WAS NOT an error.

ThomasH writes:

Buchanan's point would be that employees and employers would bargain about every dimension of the labor market contract including whether any of it would be paid in kind as health insurance and whatever resulted, subject to certain caveats, would be correct.

Unfortunately it did not work out that way. Because of WWII price controls, US labor markets evolved in such a way that people could only receive tax subsidies for purchase of health insurance if the insurance was transacted for, with their own wages, by an employer. [Also unfortunate was that ACA only weakened but did did not break the employment-health insurance subsidy link.]

No one who has passed Econ 101 thinks that this accident of history means that employers "give" their employees health insurance. What SCOTUS did not address is why this labor market quirk should give employers the right to act on their religious views (no matter how sincerely held) about which services should be covered by a its employees. health insurance policies.

MikeP writes:

ThomasH,

Uwe Reinhardt is not "the NYT".

Regardless, Reinhardt's piece never broaches the reason that most coverage in the US is provided by employers, namely that such benefits aren't taxed as income.

As for the error you speak of, I am not at all clear what it might be.

I assume you will find approximately zero posters or commenters on this forum who think that employer provided health care as an intentional component of the health care system is a good idea. Nonetheless, the government has incentivized both employer and employee into this arrangement, and it is clearly the employer making the decision on what health care to buy with the employer's money. That the employer would rather, tax incentives being equal, give money to the employee so he could buy his own portable health insurance is beside the point. You seem to think the Supreme Court should make a decision based on such a hypothetical. Isn't that rather silly as well as legally unsupportable?

Perhaps the error is that some people still imagine we don't live in a fascist state where employers must unquestioningly do the bidding of the government. Well, hope does spring eternal.

MikeP writes:

By the way, quoting the Reinhardt article...

Imagine yourself in a bar where a pickpocket takes money out of your wallet and with it buys you a glass of chardonnay. Although you would have preferred a pinot noir, you decide not to look that gift horse in the mouth and thank the stranger profusely for the kindness, assuming he paid for it. You might feel differently, of course, if you knew that you actually had paid for it yourself.

...Reinhardt fails to note that the pickpocket adds 50% to the money taken out and, in most cases, provides wine from his own cellars to save even more money. So rather than a $6 pinot noir, you are getting a $10 chardonnay. You might rather have the pinot. So would I. But most people prefer the more expensive wine. Thanks stupid government tax incentives!

Am I surprised Reinhardt made this error? Not really. He is writing to convince people of a political position. He would rather not confuse them with facts.

Also, I don't know anyone who thanks their employer profusely for their health insurance. Do you?

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