Rights Theory, Social Justice

The Contraception Mandate Part II: Liberal vs. Libertarian Approaches

I was hoping to garner interest with my last post. I consider the contraception mandate an important issue not merely because it is in the news but because the controversy surrounding it drives people to vigorously engage broader philosophical issues.

I think there were three general concerns that merit a detailed response. They are scattered throughout the comments, but good_in_theory (GIT) brought them together in an elegant way towards the end of the comment threads. I will reconstruct the argument.

I. Brief Summary of My Previous Argument

I base liberalism on a principle of public justification (PPJ) which holds that a coercive law L is only justified if members of the public have sufficient reason to endorse L. The contraception mandate (CM) coerces the Roman Catholic Church (RCC) but the RCC has sufficient reason to reject the CM, so CM cannot be publicly justified. Since liberalism can be understood in terms of the principle of public justification, the contraception mandate is illiberal (and unjust)

II. GIT’s Dilemma

As I interpret him, GIT presents myargument with a dilemma, namely that it rationally cannot compel liberals to reject CM because the principle on which it is based (the PPJ) is illiberal. Here’s my reconstruction (it’s not perfectly valid, but you get the idea).

(1) The argument from the PPJ applies to cases besides the CM.

(2) The set of cases is very large, which means that coercion is very hard to justify.

(3) If the PPJ says that coercion is very hard to justify, the PPJ is libertarian, not liberal.

(4) Attempts to limit the set of cases will give special treatment to religion.

(5) If the PPJ gives special treatment to religion, the PPJ is inegalitarian, not liberal.

(6) Either the set of cases is large or it is limited.

(C) The PPJ is either libertarian or inegalitarian and so, not liberal.

This argument is my way of putting the best articulation of the general points that my argument makes religion special, is discriminatory, is really libertarianism, etc. In my response, I will accept (1) but deny (2) and (4). I do so on the grounds that we should distinguish between mere moral complaints and conscientious objections. Only some versions of libertarianism make all moral complaints defeaters for laws, whereas supporters of the mandate downgrade conscientious objections into moral complaints. True liberalism vigorously defends the distinction, barring coercion in the case of conscientious objections (“Here I stand. I can do not other.”) but permitting it in the case of moral complaints (“This law is not fully just.”).

III. Some Theory

The principle of public justification is typically combined with the claim that freely reasoning individuals will tend to disagree rather than agree about life’s most important questions. Rawls called this “the fact of reasonable pluralism.” If a liberal society is based on the PPJ, then that means all coercion must be the subject of an overlapping consensus, namely that the coercion in question is justified to each reasonable point of view.

For a coercive law to be justified, however, it need not be optimal from the moral perspective of each person. A coercive law is prohibited only if citizens lack sufficient reason to endorse it. But citizens often have sufficient reason to endorse morally sub-optimal laws. Given reasonable pluralism, we cannot reasonably expect for every law to be morally optimal from our own perspective. So we must acknowledge that some morally sub-optimal laws can acquire our allegiance. Consequently, the imposition of such laws can still treat us as free and equal. In other words, morally sub-optimal laws are liberal.

Consider a dispute about the appropriate size of a safety net. Suppose for the sake of argument that all members of the public regard some safety net as justified, but they disagree about which safety net (A, B or C) are morally best. We can say, then, that policies A, B and C are in an eligible set of proposals. Any one of them can be selected by a justified decision procedure, such as a constitutionally limited majority vote. But consider deeply social democratic policy D. It is probably not in the eligible set because more libertarian members of the public have defeaters for it. Such is the fact of exceedingly meager policy E, because more social democratic members of the public have defeaters for it. But A, B and C are still eligible for both the libertarian and the social democrat.

We can therefore distinguish between laws that are (a) defeated, (b) eligible, but morally sub-optimal and (c) morally best.

I believe that GIT’s argument implicitly assumes that laws are either morally best or justified. That is, they can have status (a) or (c). If laws can only be morally best or unjustified, then it is easy to see why, say, all safety nets are defeated. Members of the public do not agree on which policy is best. Radical libertarians will be happy with this result. But as a neoclassical liberal, I am not. I think some safety nets are eligible, but morally sub-optimal from my point of view (and from other points of view, I’m willing to bet). Admittedly, I think that all healthcare mandates are unjustified because they violate even a modest right of liberty of contract. But set this view aside for the moment. It should be clear to any liberal that mandates (like the CM) that violate conscience are defeated because conscientiously committed members of the public have especially strong reason to reject the coercive law in question.

If I am right, then the PPJ is not objectionably libertarian, as it holds that many non-libertarian laws can be publicly justified to libertarians even if from the libertarian perspective they are morally sub-optimal. Premise (2) is false.

We can now see why premise (4) is false as well. Religious reasons function as defeaters not because they are religious but because they are reasons characteristic of the core life projects and principles of religious citizens. But non-religious, moral reasons can play a similar role for non-religious citizens. Thus, the PPJ requires that conscientious objector status must be extended to non-religious citizens. That is, all persons have a right of moral conscience. When a coercive law forces someone to violate her religious or moral conscience, it is defeated. But a right of moral conscience does not render all morally sub-optimal laws unjustified.

IV. Back to Practice

I use this machinery to substantiate a commonsense intuition, namely that some moral concerns rise to the status of defeaters for laws, whereas others simply show certain laws to be morally sub-optimal. It is this commonsense intuition that leads courts to distinguish between conscientious and non-conscientious objections to laws. In the case of morally sub-optimal laws, a liberal polity can demand that citizens tough it out (whereas a libertarian polity cannot). But in the case of laws that violate moral conscience, a liberal polity cannot demand that citizens comply with the law without injustice.

I contend that the contraception mandate is not merely morally sub-optimal because it forces the RCC to violate conscience. It seems obvious then that RCs have conclusive reason to reject CM. Thus CM can have no authority for them and so they have no duty to comply with it. To impose CM on them anyway is to coerce them without justification and so defeat the case for the law. Or so a liberal must contend. CM can only be justified if the RCC’s complaints are mere complaints of moral sub-optimality, but they are clearly far stronger than this.

In contrast, few citizens have defeater reasons for all redistributive proposals, as property rights themselves are the subject of reasonable dispute. The use of coercion to enforce property rights cannot be justified to social democratic members of the public who regard full libertarian property rights as unconscionable. That said, full social democratic property rights cannot be publicly justified either, as libertarian members of the public regard them as unconscionable.

When it comes to property rights, then, neither libertarians nor social democrats get their first choice. Instead, property rights will have, as Jerry Gaus has argued, a classical liberal tilt. Legitimate states can engage in limited redistribution. But many forms of redistribution are defeated, such as the redistribution of capital goods involved in state socialism. Redistribution that violates conscience is also defeated.

V. Conclusion

GIT’s dilemma depends on a failure to distinguish defeater-strength reasons of conscience (“Here I stand. I can do no other.”) from mere moral complaints (“This law is not fully just.”). The PPJ is only objectionably libertarian if all moral complaints count as defeaters. In contrast, the mandate can only be justified if reasons of religious conscience are mere moral complaints. With this distinction in hand, we can see both that the public justification principle is liberal, not libertarian (though libertarian-leaning) and that it does not give special treatment to religion. Premises (2) and (4) are false.

So to reiterate, CM is authoritarian, illiberal and cannot be implemented without injustice.

Published on:
Author: Kevin Vallier
  • Brandon Turner

    I find myself agreeing with much of what you say here, Kevin.  Two things trouble me, though:

    1.  In your previous post, you wrote this: 

    “Let’s be clear: no one is oppressing women. Instead, a religious organization doesn’t want to pay for contraception. That’s it.”

    Is that true? I’m not sure if we can so easily isolate the issue in this way, particularly because the recent debates on contraception *seem* to be, at least, linked up in real ways with debates about abortion.  Moreover, does it matter that the contraception debate has a specific history, and that the fight to make contraception widely and easily available was seen (and is still seen) by many women as essential to female autonomy? This doesn’t speak to the validity of your argument, obviously, but it speaks to its scope.

    2.  Related to this: I wonder if the argument looks different if we think about it less in terms of “reproductive liberty”–a term that is somewhat unclear to me–and more in terms of the sort of socio-cultural conditions under which women can thrive.  Making it simply about “reproductive liberty” softens in important ways the degree to which women are disadvantaged by the project of birth and child-rearing, and the extent to which this disadvantage was for a very long time (all of human history) exploited by men in systematic ways.  In other words, only when we understand “reproductive liberty” as special for women–in the sense that this particular “liberty” (though it seems much more like a power) *unlocks* in important ways a much broader array of liberties–will we have a better idea of why the fight over contraception isn’t *just* about contraception. 

    • Yes, and this is not to mention the often serious psychological and emotional problems that unwanted children deal with throughout most of their lives, if not all of it. Some of the most difficult adult patients to help in psychotherapy were unwanted children.

      • j_m_h

        For both Rick and Brandon.

        I’m still missing the connection between what employer insurance covers and how that’s some form of oppression.

        With regard to abortion and unwanted children, RRC objects to abortion so so preventing the demand for abortion with contraceptives doesn’t seem to have much place here. With regard to unwanted children religious organizations were traditionally sources for housing and helping orphans and abandoned children. In other words they were already doing things to address the unwanted child social issue.

        I still come back to:  
        a) women have other choices about where they work and the type of insurance they get form an employer (I didn’t see anyone mention the option of not taking the insurance the employer offers and using the additional income to buy one’s own insurance plan.) and
        b) contraception in and of itself in not a medically required treatment — in most cases pregnancy is not a “disease” but an easily anticipated result of specific actions. 

        For those who argued contraceptives have other medical uses I’d ask “Would these medications be provided under the insurance religious organizations provide for such cases?” I would think the answer is yes since the purpose has nothing to do with preventing pregnancy even if that’s one of the side effects.

        • “a) women have other choices about where they work and the type of
          insurance they get form an employer (I didn’t see anyone mention the
          option of not taking the insurance the employer offers and using the
          additional income to buy one’s own insurance plan.) and”

          If you ignore the fact that individual coverage is something like two or three times as expensive, sure. But that’s a huge deal and a big part of the reason that employer provided coverage is so desirable, totally over and above any tax benefits.

          “b) contraception in and of itself in not a medically required treatment
          — in most cases pregnancy is not a “disease” but an easily anticipated
          result of specific actions. ”

          Dude, my wife and I have lived through this. The first pregnancy (planned and wanted) was difficult and the very strong medical advice was to NOT GET PREGNANT AGAIN. In the absence of contraception of some sort — and the pill is by far the most reliable, and therefore medically indicated — option apart from surgical sterilization (again, counter to Church doctrine), the only course of action would be… well, inaction of the sort of specific action you allude to. Is that really a reasonable, or for that matter, pro-family course of action?

          “For those who argued contraceptives have other medical uses I’d ask
          “Would these medications be provided under the insurance religious
          organizations provide for such cases?” I would think the answer is yes
          since the purpose has nothing to do with preventing pregnancy even if
          that’s one of the side effects.”

          I would think the answer is probably no. A drug is either on the insurer’s formulary or it isn’t. It’s either paid for or it’s not. If it isn’t on the formulary it’s unavailable despite any medical need. If it is, then it would be practically impossible for the insurer (the bureaucracy of which probably doesn’t actually care that much anyway) to police WHY the drug was being prescribed. And even if they tried, it would be trivial for a woman to complain of painful cramping and heavy bleeding and find a physician to prescribe for that condition, thus rendering the whole moral exercise a pointless sham. Further, it may or may not even be the case that the medical insurer is the prescription insurer. At my place of work, the two functions are separated (Aetna for medical and CVS for prescriptions, as well as separate carriers for vision and dental).

          • Damien S.

            IUD! (I’ve read it’s actually more effective than the pill.)  Condoms! Oral sex!
            Wait, those are all opposed by Church doctrine too.  Hmm…

            Oh, and in re-reading about IUDs, I found this in a 2009 Slate article:

            The same was true for my friend Daniela, who stuck with the pill—even
            though it made her “unbearably emotional”—until she graduated college
            and her pill bills, which had been partially subsidized by her student
            health care plan, rose from $7 to $50 monthly. On a trip to Brazil, she
            learned about the IUD from local friends, and had the ParaGard inserted
            on her return to the States.

            $50 monthly = $600/year = non-trivial cost in the lower quintiles (overlapping with “people who don’t have much choice in what job they get”, especially now).  That for all the men who think it should obviously be an out of pocket expense.

            New varieties, as one might try to minimize side effects, can be $90/month, or $1080/year.

          • j_m_h

            My answer to you and your wife is don’t work for a religious organization that is concerned about contraception (not all are).

            It’s also worth pointing out that the terms of the employment are hardly a secret so it seems odd that a lot of people who are not directly involved with the relationship are hell bent on influencing what that relationship is.

          • Michael Ejercito

            If you ignore the fact that individual coverage is something like two or
            three times as expensive, sure. But that’s a huge deal and a big part
            of the reason that employer provided coverage is so desirable, totally
            over and above any tax benefits.

            Then they should work for an employer that provides the coverage.

        • Brandon Turner

          I see entirely your objection.  From a rights-oriented perspective, this looks open-and-shut: there’s no coercion here, so there’s no foul.  But I suppose I’m trying to point out some facts that qualify the issue in important ways.  So, in response to your points:

          a) What you say is true, but it’s equally true that we’re not choosing between a world of government mandates, on the one hand, and government-free market-provided health care, on the other.  The health-care industry is *already* a leviathanic mish-mash of grants, mandates and regulations, and so I’m not sure how helpful it is to suggest we can isolate so analytically one mandate and treat it decontextually.  *Givent the healthcare industry we have,* what is the course that maximizes individual liberty and flourishing, in this case? I’ve stated the reasons I think it’s clearly on the side of providing contraceptives as widely as possible. 

          b) I simply disagree.  To advise women (and couples) to stop having sex is unrealistic and, more importantly, fails to reckon with why contraceptives have done a world of good for women.  Child-rearing is a burden with long-term effects on emotional and financial health that cannot be offset by financial assistance from the father or the government, and it is a burden that falls disproportionately on women.

          • j_m_h

            Thanks Brandon.

            With regard to a), I agree that we’re talking about the messy real world and not two ends of some ideal view. What I still don’t understand is why given that it’s okay to suggest that a bunch of people not involved in the relationship push the terms to one side. As I understand the issue we have nonRC people working for various entities of the RCC. The views of that church are hardly a secret and the idea of respecting religious beliefs is a core value in our society. Why do we want to say that it’s okay to force the RCC to provide health insurance that provides a sin (in the RCC eyes) to people at the RCC expense? 

            I’m not looking at the from an employer-employee perspective here. That seems to be the position a number of people, and mostly those who are both outside the direct relationship and not RC. Where is see the similar analogy would be forcing people who are not RC or not employed but the RCC to forego the use of contraceptives entirely. Clearly just because the RCC and those following it believe contraception and abortion are sins there is no reason to enforce that on others. That is also part and parcel of the separation of church and state and respect and toleration of others’ religious  beliefs.

            Regarding b), I’m not suggesting that we advice couples from having sex. What I’m saying is that if you work for the RCC or similar religious organization what see contraception as a sin then buy your own and not expect to have insurance cover it. Personally I don’t think I should have to foot the bill for others in my premiums but it’s also not something I worry about, nor would I waste my time and effort trying to change the policies.

            What I am saying is that if someone chooses to work for such an organization they should go into that expecting these to be some of the costs of that decision. If it’s that important to them they are making a bad decision going in; it’s an avoidable bad decisions and neither of those conditions are good reason for the RCC to have to foot the bill for them.

            In the cases where something changes and it’s unanticipated, providing for their own contraceptive medication is not that expensive so why isn’t it a reasonable cost for the person to bear until they can adjust their employment conditions?

            Quick addition, yes, contraceptives have provided a lot of benefits for women. But then again much of those benefits are enjoyed directly by women so why is it bad for them to pay for benefits they enjoy?

        • What Brandon said, plus I almost can’t believe we’re arguing about something that would help minimize unwanted or unplanned children, along with unnecessary and avoidable abortions. A great amount of human suffering, misery and unhappiness is avoided by making contraception readily and easily available, even aside from other common health issues.

          • j_m_h

            But Rick, we’re not arguing about that. I’m perfectly happy with women, or their man, buying contraceptives or employers who have insurance plans that include them.

            We’re arguing about whether it’s okay for force a group of people who objected to such treatments on moral grounds–and I do allow religious beliefs into that class — to facilitate the treatment.

            If you really believe that people should be free to make their choices but also need to take responsibility for those choices then this whole discussion seems irrational. I’ll admit I’ve not read everything you’ve written but you seem to be in the camp of individual responsibility.

  • “So to reiterate, CM is authoritarian, illiberal and cannot be implemented without injustice.”

    Quick question: does your methodology permit the consideration of countervailing injustices?

    How, for instance, would your metrics apply in the case of, say, a
    population arising against Muammar Gaddafi?  Gaddafi and his family
    members clearly made “defeater” arguments against a majority of the
    population who in turn made “defeater” arguments against him.  I think
    it’s safe to say that the objections raised by “Gaddafi defeaters” were
    to pretty gross and systematic injustice across very wide swaths of the
    populace (including but not limited to the Gaddafi defeaters
    themselves.)  Meanwhile, though, given Gaddafi’s defeater position it
    was also clearly “authoritarian, illiberal, and unjust” for the populace
    to resist his authoritarian and illiberal

    Similarly, going back just three generations in my own family, consider
    the authoritarian, illiberal, and “unjust” (heck, let’s just call it
    ALU) freeing of my Great Grandfather’s family’s slaves.  By your line of
    reasoning there’s no question it was ALU, even though by pretty much
    any standard (except perhaps neoclassical liberals?) it was ALU as Hell
    for his family to own slaves to begin with.

    So.  I’m actually perfectly content to say that a certain amount of ALU
    is permissible in order to reduce a much greater quantity of ALU.  In
    which case, yeah, I’m willing to see Gaddafi overthrown by those who
    considered themselves his victims regardless of how ALU his deposing
    might be to him.  Similarly I’m willing to see my ancestors involuntary
    dispossession of their “property” regardless of how ALU that
    dispossession might have been.

    And since I’m cheerfully willing to stand up for the “injustices” of overthrowing dictators against their wishes and freeing slaves against their owners wishes, I’m not really troubled by a few CBs being
    subjected to the (as amended) mandate to offer insurance to their
    employees (but not themselves) that gave those employees an
    option to use medical birth control at no extra charge to the employers if
    and only if the CBs chose to offer their employees as a
    perquisite in the first place.
      (Because, remember, there is
    no, zero, none-at-all mandate anywhere in the ACA or any other Federal
    law requiring employers to pay for their employees health insurance.)

    So. According to you that makes me not only a bad Libertarian but a bad liberal as well?  Interesting if true.


    p.s. “Let’s be clear: no one is oppressing women. Instead, a religious
    organization doesn’t want to pay for contraception. That’s it.”  If that’s true then yup, your argument stands on firmer ground.  Oh wait, I’d probably want to add “no one is oppressing women and no one who objects to the mandate has ever expressed an interest or intention of oppressing women” then your argument stands on firmer ground.

    • Thomasy

      figleaf’s imagination grows ever more fanciful:  now we have a racist member of the Aryan Nations who doesn’t  mind employing African Americans, just objects to providing insurance coverage.  I confess that in a million years I’d have never ever come up with that one.  

      But: yes!  Recognizing conscience rights means freedom for people we disagree with!

      Faced with an argument that the CM is authoritarian and illiberal, figleaf says, Hell yeah!  

      • Why stop there? Maybe Aryan Nations members object to paying black employees at all? They still want the “employees” though. 

        Oh well, I guess we have to legalize slavery. You know, for tolerance.

        • j_m_h

          Sure, but somehow that doesn’t seem to meet the free association criteria of  any form of liberal society.

    • Kevin Vallier

      Public reason liberals offer a number of replies in these marginal cases.

      (1) They will ask whether the example is contrived or not, that is, do members of the Aryan Nation Church have genuine conscientious objections to providing equal coverage to African Americans. If not, then there’s no problem.

      (2) They will argue that the request is unreasonable because it is incompatible with respect for persons and free and equal. Reasonableness is a constant constraint on what count as publicly justified laws. It is a vexed term, however, so I try to resist employing it. If the request is genuinely unreasonable, then there is no problem.

      (3) They will grant the exemption.

      Since the case you propose is fictional, I’ll ask you for a real-world case. I’ll research it and tell you which of replies (1)-(3) I will support. Here’s one example to challenge you, though. Until 1978, blacks could not be priesthood holders in the Mormon Church. Being a priesthood holder comes with certain rights and benefits. Would you coerce the pre-1978 Mormon Church into providing the same benefits to black men?

      • I would no more require the Mormon Church to ordain non-white men if their “consciences” opposed it than I’d require the Catholic Church to ordain women or, for that matter, non-pedophiles.  (This isn’t to imply that all priests and bishops are pedophiles, just that I wouldn’t require the Church to ordain non-pedophilies if they claimed that ordaining non-pedophile priests violated their consciences.)

        But!  If the Mormon Church did choose to ordain African American men but then objected on “religious conscience” grounds an EEOC mandate that they provide the same insurance coverage to their African American employees — access to all legal, lab-approved, and routinely-provided-by-insurers medications prescribed by physicians — that they provide to their white employees?  Yeah, I’d have a really hard time letting that pass.

        To step away from hypotheticals, in the same way I have a hard time giving a pass to the leadership of the Catholic church for similarly withholding the same insurance coverage for their female employees — again, access to all legal, lab-approved, and routinely-provided-by-insurers medications prescribed by physicians — that they provide to all other employees.

        More to the point, I think you really, really have to stretch neoclassical liberalism to make the case that gross, chronic injustice against a majority should be tolerated in order to protect petty, temporal injustice against a few.  Well.  Unless maybe there’s something about neoclassical liberalism that justifies creating special-case dispensations for religious discrimination over comparable discrimination by private non-secular institutions.  In which case thank goodness the RC doesn’t instead advocate virgin sacrifices “in good conscience!”


  • Damien S.

    This argument only works if there’s some objective way of recognizing “defeaters”.  But there isn’t.  Sometimes someone raises an alleged objection of conscience and the majority chooses to recognize it (conscientious objector status vs. the draft — sometimes; Native American Church and peyote), and sometimes the majority says “suck it up” (anyone else with an entheogen tradition, paying taxes for war, paying taxes for war on drugs, paying taxes in general…)

    The Catholic Church is claiming that being forced to provide standardized insurance, if they choose to provide insurance, that the individual insured can use to pay for birth control if the individual chooses to obtain birth control (which may not even be for sexual reasons, cf. regulation of periods), is an unreasonable violation of their conscience… compared to paying a salary which the individual can use to obtain birth control.  And the rest of us are saying “Bullshit” or maybe “Suck it up and get in line.”  The Church doesn’t get to veto how you spend your salary and it doesn’t get to veto the insurance you get either.

    • Thomasy

      So, your view is that CO status and Native American religious use of peyote both involve cases where we should say “bullshit” or “suck it up and get in line”?  

      You know, moral argument can work, if people engage in moral argument.  Or the authoritarians can say, who’s going to stop me? You and your little argument? Suck it up and get in line. 

      • Damien S.

        You fail at reading comprehension.  Those were examples to show that invoking conscience is not in fact a magic weapon against laws one doesn’t like, but subject to majority tolerance.  Personally I’m all for full drug legalization and not drafting people for overseas wars.

        • Thomasy

          So sometimes you are personally in favor of tolerance, and other times not.  Presumably when you are you don’t want to dictate the position everyone else takes.  

    • Kevin Vallier

       I admit that epistemic barriers are significant. In fact, my adviser and I discuss some of these epistemic hurdles towards the end of this article: http://www.kevinvallier.com/wp-content/uploads/2010/10/Gaus-and-Vallier-Roles-of-Religious-Conviction.pdf

      You need a good court system for detecting sincerity. But since we know that defeaters are hard to detect and that there is a presumption against coercion, we should have constitutionally limited government to err on the side of caution.

      • 3cantuna

        Can you provide a real world example of constitutionally limited government?

  • Andrew Lister

    Kevin, I want to press you on a general point about the need to justify coercion to everyone, and the classically liberal but allegedly not overly libertarian implications of such a principle.  Suppose we rank safety net policies by strength (degree of egalitarianism or redistribution) from left to right as follows:

    D A B C E 0 

    with 0 being the no-safety-net policy.  Libertarians have defeaters for D in the sense that they (reasonably) rank D below 0, so D is not eligible.  In what sense do social democrats or egalitarians have “defeaters” for E?  Do they rank E below 0?  Presumably they think a minimal safety net bad, but not worse than none at all.  If the criterion is unanimous (idealized) acceptability relative to no safety net holding all other policies constant, justificatory liberalism has a strong (overly?) libertarian tilt.  

    What the egalitarian probably thinks is that if there is no safety net at all and no state guarantee of access to resources then the system of property rights is not justified.  Better to have no property rights at all than to have the world privately owned without any public provision for those without property.  When applied to this expanded space of policies (welfare policy plus property law), however, justificatory liberalism no longer has a classically liberal tilt (assuming the egalitarian view counts as reasonable).  The principle is that so long as a welfare/property system is better than none at all it is eligible. The objections of libertarians make socialism ineligible, but the objections of egalitarians make private property + no safety net ineligible.  Now there is no tilt, just exclusion of far-left and far-right systems of property+welfare.  The only way you get a rightward / classical tilt in this expanded space is by ranking policy proposals as to their coerciveness / degree of state action, and then saying that to be eligible a proposed policy must be not reasonably rejectable as against any less coercive / less active policy (and not unanimously rejected in favour of some more coercive / active policy).  Well, there is one other way to get a classical tilt – just draw the bounds of the reasonable so as to rule out views at one end of the spectrum rather than the other.  But that’s not as satisfying.

    Another general question about your argument.  Does the fact that a reasonable religious or philosophical view rejects a given law mean that the law is invalid, or just that that group may have a legitimate claim to an exemption?

    • Kevin Vallier

      Thanks so much for jumping in on this, Andrew. Of course, your question requires carrying the discussion to an even higher level of abstraction, a discussion we can hopefully have in journal format! But here’s my quick gloss: I like Jerry’s individuation criterion in OPR, where we distinguish between objections of justification by asking whether they have “strong interactive effects.” Also, Jerry provides reason to individuate at the level of rules for reasons of cognitive evaluation and moral psychological response. So there are a number of considerations that point towards a fine-grained but not maximally fine-grained individuation of coercion.

      If such a degree of individuation is defensible, then I think the classical liberal tilt can be maintained in a non-arbitrary fashion. I want to write on my own individuation criterion soon, though.


    You say:
    “GIT’s dilemma depends on a failure to distinguish defeater-strength reasons of conscience (“Here I stand. I can do no other.”) from mere moral complaints (“This law is not fully just.”). The PPJ is only objectionably libertarian if all moral complaints count as defeaters. In contrast, the mandate can only be justified if reasons of religious conscience are mere moral complaints. With this distinction in hand…”

    The distinction between “reasons of conscience” and “mere moral complaints” is apparently clear to you. It is far less clear to me, and I suspect, many of your other readers. For the person voicing it I believe that virtually all moral complaints will be regarded as reasons of conscience. It will do no good to tell a principled opponent of the death penalty that “We’ll only use it for really heinous crimes.” Or, someone who believes life begins at conception or soon thereafter, “Well, we will ban the procedure after 5 months or viability.” These aren’t suboptimal results for those who hold these beliefs, they are immoral, full stop.

    So too, for Randians ALL redistributive policies are not suboptimal (“not fully just”), they are immoral assaults on the people coercivelly required to provide this assistance. Ditto for Nozickians, except for the possible prevention of “moral catasrophes.” It is not that what you might regard as “moderate” redistribution is as you say “not fully just,” it is completely unjust for them, although less unjust than full on socialism. From the other end of the ideological spectrum, those who sincerely hold that “All property is theft,” will regard even “humane” forms of capitalism as not simply “not fully just,” but completely immoral. Perhaps you could sketch out for me those property rules for which you claim  that neither those who believe “All property is theft” or those who regard property rights as sacred would have a reason of conscience to reject (and thus a “defeater”).

    • Thank-you, Mark, I totally agree and you said it better than I could have.

      Given 1) that there exist totally reasonable and medically legitimate uses for oral contraceptives apart from preventing pregnancy, and 2) even preventing pregnancy itself can often be medically indicated, and 3) “religiously-affiliated” is NOT exactly the same thing as a church, and 4) a substantial portion of the employee pool is not Catholic, and 5) insurance premiums for a policy that covers BC is arguably LESS expensive than an equivalent policy that doesn’t, and 6) abortion — which arguably is a far graver moral issue — is already exempted as well as being forbidden to be funded by Federal dollars… whew!  I don’t think it’s entirely unreasonable to conclude public justification has, in fact, been met. I mean… ultimately it seems to come down to a judgment call and I know of no reason, a priori, to assume your judgment is really any better than mine or anyone else’s.


        You are welcome. Since we disagree on almost everything else, our agreement here may be powerful evidence that the PPJ just doesn’t cut it.

    • Kevin Vallier

      To what extent do you distinguish justice and legitimacy? I think there’s a big gap such that laws can be legitimate (that is, authoritative and normatively binding) even if those laws are unjust. Given that free and equal people disagree about what counts as just, it would be a serious source of strife and alienation if we had no moral way to live together. I see much of your question as relying on a tight tie between justice and legitimacy. If X regards law L as fully unjust, law L cannot be legitimate and is thereby defeated. Is that your view?

      I place the ownership of personal property, limited capital goods and various liberties of working and trade in the eligible set. Almost anyone is going to regard these basic property rules as better than no rules at all such that the laws can count as legitimate, if unjust, from many reasonable points of view. Libertarians don’t get to exclude others from their holdings to the point of their death (the weak have defeaters for property rules that lead them to suffer more than they would in a state of nature), and social democrats don’t get to demand massive redistribution of various forms of property rights such that the projects of some are made to serve the projects of others. Such redistributions violate the rights of agency of most reasonable members of the public, and their basic economic liberties.

      Of course, I can’t give you a full account here. But I like the accounts in Lomasky’s Persons, Rights and the Morality Community, Gaus’s The Order of Public Reason and Tomasi’s Free-Market Fairness. I’d include the rights at the intersection of their views as in the eligible set. Push me on more specific points if you like.


        Thanks for the clarifying reply. To answer your question at the end of your first paragraph: yes, that’s exactly my view. And, I would go much further still–any contrary view is implausible on its face because it is inconsistent with what it means to be a moral agent. To be a moral agent simply is, among other things, to reject and fight unjust laws.

        In my view, we owe our special moral status and dignity to our (so far as we know) unique capacity to comprehend and apply the moral law. What kind of moral agent thinks as follows: For reasons x, y and z, I regard the death penalty is morally abhorent; nevertheless, I prefer a narrow application of this punishment to its wholesale use; therefore, I accept that if we restrict this punishment to certain crimes it is (as you say) “authoritative and normatively binding”? (This is what I understand you to be saying; see your answer to CFV below, I apolgize if I have got this wrong).

        Such a person is abdicating his/her moral responsibilities and is in my opinion no longer entitled to the same respect owed fully functioning moral agents.

  • M vR

    Matt is posting links on facebook, so rather than answering in the comments to his link,  as I did yesterday, I’ll write something here that he’ll find equally unconvincing.  🙂

    As I understand it the old “mandate” (the one before the proposal was revised to require insurance companies to provide bc coverage) mandated covering bc if you insure your non-immediately-religiously-employed employees.  So it did not mandate paying for coverage, just paying for it if you bought insurance.  Probably the RCC should want to insure all of its employees, but if it is really worried about paying for bc it can just pay them more in wages to make up for the lack of insurance and they could purchase whatever insurance they need, though perhaps at greater cost to themselves.  Is there a liberal complaint against this.

    Here’s one you might have — you could think the law should mandate buying health insurance for employees.  My own view is that someone should buy everyone good insurance and that the best way to do that is single payer, but barring that perhaps a law like this would be 3rd or 4th or 13th best, depending on the effects on overall employment.

    My guess is you won’t like that option.

    Here is a policy that I think no one can reasonably endorse.  Picking a system to provide most of the insurance people have access to, which covers most all other health-related measures but does not cover birth control.  I think this is especially unreasonable when that comes to covering all sorts of male conditions that may have to do with sex while not covering as important conditions that may or may not have to do with women’s sexuality.  I think that objections to such policies are more strongly justified as a matter of conscience than any complaint about providing bc.  For these policies don’t treat women as equal to men in their freedom to make personal health care decisions, and that is on its face not reasonable. 

    Someone who objects to the present policy but thinks that some other method of providing universal health insurance under which people could choose to purchase birth control and have it payed for by insurance, seems to me at least sensitive to the unreasonableness of denying control over their own health care on the same terms as men to women.  We would even agree on the best way around the objections to the present proposal.

    To be honest, I don’t regard the party line RCC view (as opposed to say the views that actual members often hold) on bc as reasonable.  I can see leaving some room in a policy for even unreasonable objections by parties who vehemently but unreasonably disagree with it.  But that is what I think we have here even before the policy was modified to require insurance providers to provide bc coverage.  (And for them I think the relevant choice is, if you don’t want to cover bc, get out of the health car business.  That’s also not much of an interference with liberty.  Similarly for pharmacists who don’t want to fill prescriptions of that sort.)

  • CFV

    It seems to me that you’ve not fully shown why premise (4) is false.

    How does PPJ deal with radical anarchists’ conscientious objectors? 

    To illustrate my case in a colorful way, suppose I am a graduated from Rampant College, and therefore I happen to believe in Robert Lefevre’s autarchism: http://centerforselfrule.org/autarchy

    My two interrelated counter-arguments would be something like this:

    1. All persons have a right of moral conscience (a premise you’ve already accepted).

    2. When a coercive law forces someone to violate her religious or moral conscience, it is defeated (a premise you’ve already accepted).

    3. Autarchists are persons (premise beyond any reasonable doubt).

    4.  Autarchists have a right to their moral conscience (from 1 and 3).

    5. Autarchists believe, among other things, that all coercive laws are deeply wrong (“Here I stand. I can do not other. I am an autarchist, remember?”).

    6. When a coercive law forces autarchists, it is defeated (from 2, 4 and 5).

    7. All coercive laws forces autarchists (from 5, almost by definition of autarchism)

    8. Therefore, all coercive laws are defeated (from 6 and 7).

    Now, this result is clearly absurd because it seems to entail an internal contradiction in the PPJ:

    1. PPJ holds that a coercive law L is only justified if members of the public have sufficient reason to endorse L (from your definition).

    2. Autarchists have sufficient reasons to reject all coercive laws (see argument above).

    3. Therefore, coercive laws cannot be publicly justified.  

    Be aware of the fact that this argument can uphold your tripartite classification between laws that are (a) defeated, (b) eligible, but
    morally sub-optimal and (c) morally best.

    It is not the case that autarchists believe that all coercive laws are (merely) sub-optimal. All coercive laws are defeated because “conscientiously committed members of the public have especially strong reason to reject … [all] coercive law[s] in question.”

    We can even further argue that PPJ is illiberal (and unjust)…


    • This is a great point, since if KV objects that anarchism is not “reasonable”, then one has to ask how Catholic doctrine is reasonable. 

      The point of failure in the argument is that conscientious objection derives from the magnitude of the actions being coerced, not the rationale for the objection. And the RCC is objecting to being forced to very indirectly pay for something that they would also be indirectly paying for if they gave no health benefits to their employees at all. By contrast, conscientious objection to military service involves not being forced to fight other human beings to the death

      When you further take into account the fact that our tax system makes it so that employees almost never have equal opportunity to buy their own coverage, you recognize that this “coercive” mandate only offsets a far more massive pre-existing coercion. At that point, the RCC’s objection is not even a strained version conscientious objection — it is straight up protection of a state-granted privilege.

    • Dan

      Very nice post. One nitpick though: you haven’t shown that there is an internal contradiction in the PPJ — rather, the PPJ -just entails that no coercive laws are justified. Of course, this may be just as bad a conclusion, as far as Kevin is concerned. But unless something can be said which rules out the ability of principled anarchists and autarchists to defeat (not: merely provide moral objections to) any proposed law whatsoever, I think the problem is a real one. And I can’t see any obvious way to do this.

      • The PPJ just doesn’t work. But note that it doesn’t work in the other direction either. That’s because there will be members of the polity that will consider the LACK OF some law or another to be morally defeated.

        In the end I just don’t see how you can ever plausibly satisfy every member’s moral considerations to the extent PPJ demands. Religious zealots, autarchists, and other fringe outliers may indeed simply have to suck it up.

      • CFV

        Dan: thanks for your comment! Yes, I think you are right: I’ve not shown that there is an “internal contradiction” in the PPJ. But, if I am right, the PPJ encompasses some sort of  conceptual tension because the PPJ cannot justify precisely those same items that the PPJ was designed to justify. Should I have better said that the PPJ is self-defeating?

    • Kevin Vallier

      I just presented a paper on anarchism and political liberalism. You can email me for it privately if you like. Its not very good, but its a work in progress. The basic line is that insofar as anarchists rank some statist regimes as better than no state with no agreed upon property rules whatsoever, those statist regimes can be legitimate (and thus normatively binding) for anarchists. To the extent that anarchists think no state is better than even many statist arrangements they are either unreasonable or acquire conscientious objector status. At the moment, I think the latter status requires the state to give them a plot of land, a reservation basically, and to leave them alone.

      • CFV

        Kevin: thanks for your response. Yes, I’d love to read your work in progress on anarchism and political liberalism. Thanks again. Cheers. 

      • 3cantuna

        Why would an anarchist’s ranking result in 100% legitimacy and hence, 100% normative submission, in any case of a state?  Why not meet proportion with proportion?

        Why would those basking in the power of this state legitimacy “leave them alone”? It never really happens– since the state by definition cannot, will not, stand for any competition unless forced to in the Social Darwinian sense.  The state is a monopoly by hook, crook and conquer and lives on exploiting its ‘legitimacy’.

    • j_m_h

      While steps are all logical it seems to me that the issue of what defines “coercive law” in the various premises comes into play. Or maybe I’m just rejecting P5 and 2 until a clearer discussion of coercive law has occurred.

  • “Nor is it a small power it gives one man over another, to have the authority to be the dictator of principles, and teacher of unquestionable truths; and to make a man swallow that for innate principle, which may serve to his purpose, who teacheth them.” John Locke, Essay 1.4.24.

  • CFV

    Kurt: thanks for the kudos!  I believe KV’s problem is deeper than that: either PPJ is libertarian or illiberal. If the PPJ says that coercion is very hard to justify, the PPJ is libertarian, not liberal or (were my arguments successful and the PPJ cannot justify coercion at all) the PPJ is not libertarian, but illiberal. The claim that the PPJ is liberal is wanting.

    And this can really slide towards a trilemma because, assuming he’d want to rest his case by saying that religious objectors are different from my autarchists objectors, he will be giving  special treatment to religion. If the PPJ gives special treatment to religion, the PPJ is inegalitarian, not liberal. PPJ is either libertarian, or illiberal, or inegalitarian. Again: the claim that the PPJ is liberal is wanting.


  • Positive Rights Rock

    There are 3 things wrong with Kevin’s claim

    1) The Catholic institutions objecting are not objecting in good faith. These institutions would prefer to purchase health insurance for their employees than cease operation.

    2) There is no coercion of employers. The ACA does not require that employers provide health insurance for their employees. The fact that conscientious objection is claimed absent coercion is one of several reasons why I don’t believe that the US Bishops are acting in good faith.

    3) The theory of conscientious objection laid out is incomplete because
    it does not describe how to differentiate between honest and fake

    And I disagree with his formulation of his conclusion.

    4) The contraception mandate is inextricable from the health insurance mandate.  Health insurance for women includes the coverage of contraception. Objection to health insurance that covers contraception is objection to health insurance.  This point doesn’t refute any explicit argument presented, but the post implies that providing contraceptive coverage is distinct from the provision of health insurance.


    Proposed reformulation of theory of conscientious objection: A person may claim conscientious objection at any time.  All claims are assumed to be made in good faith. Claims will be honored if they can be honored without “serious inconvenience” for other partied. “Serious inconvenience” is to be defined on a case by case basis by lawful government.

    In the example of the pacifist the objection is granted because it is preferable to the public welfare that a pacifist not be thrown into combat, where he becomes a danger to himself and those who depend upon him.

    • Michael Ejercito

      The ACA does not require that employers provide health insurance for their employees.

      If that is the case, then those employers could merely drop health insurance altogether.

  • good_in_theory

    Thank you for treating my comment; I think your reconstruction does a good job of highlighting some of the salient issues.

    I see why you would think that I see the PPJ as binary, and my comment that nothing could be justified by PPJ was a bit loose and gives reason to think that.  However, I do recognize that the PPJ functions as something more like a regulative ideal and gives way to more graduated distinctions, as you develop.

    But I think there are still big problems in making those graduated distinctions, or at least making them as you have made them. 

    I think others have largely made objections I would make (for example, others have offered interesting arguments for not accepting (2) ), but maybe I can add something more.

    My reply has two posts with two parts each:

    Post 1 will address (4)  and argue that the PPJ, as formulated by Kevin, causes religious favoritism, and that the RCC position depends upon the continuation of religious favoritism.

    Post 2 argues that a principle for distinguishing complaints from objections on the basis of sincerity and intensity is undesirable because it encourages extremism, and offers an alternative criterion.

    Everything seems to turn on two things: distinguishing the “reasonable” (as opposed to the “unreasonable”) and distinguishing  “objections” (as opposed to “complaints”).  My objection focuses  on the use of Sincerity and Intensity as the criterion for distinguishing complaints from objections.

    I:  KV’s Objection/Complaint Distinction Relies Upon a Criterion Which Privileges The Religious

    (A) Moral Intensity of Belief is the Basis for Distinguishing Complaints from Objections in Kevin Vallier’s PPJ. 

    (B) Moral Intensity of Belief is Equivalent to a Subject’s own Sincere Evaluation of the Strength of their Own Beliefs – It is a Solely Egoistic Evaluation 

    (C) Public Evaluation of Moral Intensity of Belief is Equivalent to Public Evaluation of the Sincerity of Reports of the Moral Intensity of Belief – It is Solely an Evaluation of Sincerity of the Expression of Belief

    (C) Religious Reasons are Regarded as… 

    i. More Morally Intense and 
    ii. More Likely to Be Sincere

     …Than Non-Religious Reasons in the US and elsewhere.


    (D) Religious Beliefs are Privileged in Practice When We Make Distinctions Between the Morally Sub-Optimal and the Morally Defeated (Between Complaints and Objections) on the Basis of their Sincerity and Intensity

    i. Arguably in the Case of Individuals
    ii.  Unambiguously in the Case of Corporate Organizations

    The problem is that, ceteris paribus, the more unreasonable something is the more objectionable it is, and the more reasonable something is the more unobjectionable it is.

     “Reasonableness” is, in some sense, “having or not having good reasons to be objected to” and  “objectionable-ness” is, in some sense, nothing other than “having or not having good reasons to be done”.

    But all things aren’t equal, and religious moral reasons are given greater weight than secular moral reasons, as religious reasons are considered to represent stronger subjective evaluations of the value of a moral belief (or of a moral entitlement to property) than secular reasons.

    All persons have a right of  ‘moral conscience,’ but the religious are, practically by definition, more morally conscientious than the irreligious, because they are regarded as having greater capacity to make strong evaluations of their subjective beliefs than the secular, as a matter both of state policy (note all the exemptions religious institutions get which other institutions do not) and common opinion (note the incredibly low opinion of the morality of atheists in the United States.)  

    The religious are regarded as more sincere and more intense in their moral beliefs.

    As a matter of practice, religious reasons are much more likely to be seen to demonstrate something is a “defeater” than secular moral reasons, which are much more likely to only show that something is “morally sub-optimal.”  This is because, in my secular beliefs (that’s all my beliefs), I have fewer resources to draw upon in ascribing intensity and sincerity to my position.  The religious have all the secular resources I can draw upon plus all the religious reasons I cannot draw upon, as an atheist.

    So for (4), in face of the claim that religious objections are merely an unproblematic subset of all moral objections. I would posit that, as a matter of practice, religious beliefs are privileged over secular beliefs, and as such the religious are privileged in being able to establish that something is not merely a complaint, but an objection.  Basing CO status on the moral intensity and observed sincerity of a belief is an example of religious favoritism and violates egalitarian principles (as well as secular principles.)Even if this is not admitted in the case of individual moral beliefs, it is unambigiously true in the case of corporate, or organizational, moral beliefs, where religious organizations are afforded a set of privileges that are afforded to no other kind of organization, on the supposition that they have stronger moral reasons to be free of government coercion than any other variety of organization.  The alleged moral intensity and sincerity of religious beliefs purported by and ascribed to religious organizations, a fundamental aspect of US policy, is an example of religious favoritism.

    II.  The RCC Objection to the CM May Be Morally Intense, But It Is Rationally Weak, and Only Appears Reasonable Because of Prior Religious Favoritism in Classifying Moral Beliefs as Objections Rather Than Complaints

    Kevin has established that the RCC has a morally intense objection to the CM (that their reasons are strong for them).  He has not established that this objection is based on good reasons (on reasons that are strong for all of us).  I think there is good reason to believe that the RCC does not have good reasons for all of us.

    Others have deployed good arguments here, but it helps to specify that to which the RCC objects:

    The RCC objects to, in its capacity as a corporate employer, being mandated to make a monetary contribution to the provision of health insurance plans that allow the beneficiaries of those plans to elect to use contraception, if so prescribed by their doctor.

    At no point does the RCC purchase contraception – contraception is purchased by Health Care beneficiaries via their Health Insurance Provider.  At worst, the HIP, not the RCC purchases the contraception.
    At no point are Catholics forced to use contraception.
    At no point is a Catholic forced to buy contraception.
    At no point are Catholic doctors forced to prescribe contraception.

    The substance of the objection consists in this inconsistency in the treatment of religious organizations (ROs):

    1. ROs are free to not hire employees who do not uphold their religious principles, and hence do not spend money on morally objectionable things.
    2. ROs are free to not pay taxes, which fund morally objectionable things.
    3. ROs are not free to not hire health insurance companies which, through the pooling of funds, distribute money to people who purchase contraception.

    First, note that because of (1), the RCC is free to avoid the consequences of (3), if they so desire, through their freedom in hiring.

    Second, note that this inconsistency in religious privilege is only comprehensible because ROs are given preferential treatment not extended to any other entities.

    Third, note that moral beliefs given the status of objections for individuals are not at all comparable to the moral beliefs given the status of objections for religious organizations.

    (Individuals can exempt themselves from the draft.  They can exert control over the education of their children, and so on.  As far as I know, CO for individuals pretty much only pertains to freedom of belief and freedom of action, not freedom from monetary contribution.)

    Non-religious-entities (NREs) (which includes religious individuals) do not get any of these freedoms.

    NREs are not free to not hire employees who do not uphold their moral principles, and hence do not spend money on morally objectionable things. 
    NREs are not free to not pay taxes which fund morally objectionable things.
    NREs are not free to not hire health insurance companies which, through the pooling of funds, distribute money to people who purchase morally objectionable things.

    So either NREs are not being extended privileges they should be free to claim on non-religious grounds, or ROs are being extended privileges they should not be able to claim on moral grounds, regardless of the religious status of their reasons.

    So either NREs are legally prohibited from making the claims they should be able to make, or  ROs are legally required to be extended privileges they should not be able to claim.

    In either case, we are dealing with religious favoritism.

    Part 2 follows.

  • good_in_theory

    III. A Distinction Between Complaints and Objections Based on Subjective Evaluations of the Strength of Belief Incentivizes Moral ExtremismThis seems to me to recapitulate a sort of feedback loop I brought up earlier in the recent post on David Sobel on Self-Ownership, in relation to Nozick’s cross and compensate principle (NCCP).

    The problem, in both NCCP and the PPJ with it’s CO criterion as formulated, is this: the degree of benefits I receive (whether that be damages for property violation or exemptions from state coercion for conscientious objection), depends upon how strong my subjective evaluations of the value of my property or my beliefs are.

    This is to say that the more moralized, absolutist, and unaccommodating I am in valuing the integrity of my beliefs or of my personal property, the more I get, both via NCCP and via PPJ.

    This rewards the  unaccommodating and penalizes the accommodating.  Note that this is virtually to say that this rewards the unreasonable and penalizes the reasonable, rewards the dogmatic and penalizes the rational, and so on.

    More explicitly, it rewards those who believe in the supernatural status of their beliefs and entitlements relative to those who don’t.

    IV. A Distinction Between Complaints and Objections Should be Based Upon the Intelligibility of Reasons and the Material Impact of Consequences, Not On Reports of Intensity of Belief and Public Judgment of Sincerity of Speech.

    If relying upon subjective evaluation for determining CO status encourages moralized extremism, then we should prefer an alternative that does not do this.  The reason for counting something as morally objectionable should depend upon the intelligibility of the reasons given to the political community, not the strength of belief in the power of those reasons by the individual believer.  Subjecting CO status to a test of rational intelligibility and material impact rather than sincere self-reported moral intensity, encourages a reasonable, rather than an unreasonable, society.

    This is to say, that a PPJ should evaluate:

    1. Whether people have good reasons for believing the things they are being coerced to do are highly unreasonable or objectionable


    2. Whether or not the things people are being asked to do are highly unreasonable or objectionable.

    The PPJ should not simply evaluate whether or not people 

    1. Ascribe sufficient intensity to their beliefs.


    2. Are sincere in their ascription of such intensity.

    This principle explicitly favors secularly grounded beliefs over religious ones, because secularly grounded beliefs are more capable of rational intelligibility and demonstration of material impact than supernaturally grounded ones, which are quite good at producing sincerity and intensity but quite horrible at justifying such sincerely intense feelings to anyone but the initiated.

    To end polemically…

    If the liberal project is a project of enlightenment from religious superstition, then its principle of public justification should produce rational enlightenment, not encourage religious superstition – whether of a Catholic, or a Libertarian, variety (nonsense on stilts and all that).

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  • For what it’s worth this is part of a huge debate and controversy within the RCC itself.


    The comments are worth reading as well.

    • Rod, this is an interesting article, but the RCC has fed me such faulty, distorted and unrealistic information about sex since childhood, in my mind there’s nothing it could say about sex now to redeem itself, though there’s something about the RCC’s penchant for order that causes me to retain a fair amount of respect for Catholicism.

      • What that article — and especially the comments — suggests to me is that we may be placing too much weight on the claims of the Bishops to speak for the body of Roman Catholics. You also have to consider that the vast majority of Catholic women actually do use birth control.

        What I find interesting is that we seem to have a bunch of libertarians accepting this hierarchical and authoritarian quasi-state (the Vatican is considered a State) as having the moral legitimacy to speak for millions of individuals. Seems a little strange from a bunch who questions the legitimacy of a state to post a stop sign.

        • Yes, it’s remarkable how many libertarians accept the Vatican dictatorship, though most have been so indoctrinated since birth, they don’t even know what they’ve “swallowed” (as John Locke would say), which is not to say it’s all bad.

          But, the vast majority of people are not libertarian, and as I said above the RCC does provide order, which is essential for liberty to thrive.

          You and others have made some interesting comments about the tension between order vs. liberty/equality at Jacob Levy’s 12/12/2011 post “A different distinction.”

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  • Michael Ejercito

    The purpose of the contraceptive mandate is to ensure that women who are employed can have contraceptive coverage provided by their employer.

    Is there a less restrictive way of meeting this goal?


    This goal could be achieved by merely offering a tax credit to employers for providing contraceptive coverage. This is the opposite of coercion. ” There is a basic difference between direct
    state interference with a protected activity and state encouragement of
    an alternative activity consonant with legislative policy.” Maher v. Roe, 432 U.S. 4645 at 474 (1977) a tax credit constitutes encouragement, while the threat of a fine for refusing to comply with the mandate constitutes interference. Therefore, I oppose the mandate.