As many of you know, the Obama administration has decided to force religious organizations to finance health insurance policies which pay for contraception (and sterilization). The Roman Catholic Church (RCC) objects to the policy on the grounds that they regard most uses of contraception as gravely immoral, and that therefore the mandate violates their religious liberty.
In response, the Obama Administration decided to force health insurance companies to pay for contraception if their associated religious organizations have a conscientious objection. Greg Mankiw has rightly argued that the healthcare costs will be “passed on to the purchaser,” that is, the RCC. The result is that the RCC still lacks the right to decline funding activities they deem sinful.
I contend that genuine liberals must oppose the mandate. The mandate is authoritarian because it employs coercion in ways that cannot be publicly justified, and so violates fundamental liberal principles.
To see why, consider that the foundational commitment of the liberal tradition is that the freedom and equality of persons creates a presumption against the use of coercion, a presumption that cannot be easily overridden. Thus the first question of liberal political philosophy is how to justify state coercion.
The most common principle that contemporary liberal political philosophers use to justify state coercion is derived from Rawls’s Political Liberalism, what Rawls calls the Liberal Principle of Legitimacy. Over the last two decades, this idea has been generalized into the public justification principle, which holds that coercion is justified only when each person has sufficient reason to accept it. When a citizen coerces others without a public justification, she oppresses them because they lack a compelling rationale for the coercion in question. Such coercion is illiberal.
I argue that the public justification principle clearly demonstrates that the mandate is illiberal because the coercion involved in the mandate cannot be publicly justified.
I. Who is Coercing Who?
In order to determine whether a law or policy is illiberal, we must describe the various forms of coercion it involves. For the mandate, this is easy: the Obama administration will force religious organizations to use their financial resources to support a practice they find sinful. (Under the new policy, they will coerce health insurance companies associated with religious organizations to do the same.) No other coercion is involved.
Defenders of the mandate insist that a woman’s reproductive liberty is significantly restricted if her employer refuses to pay for contraception. This is false. To see why, abstract. Is A’s liberty to X restricted if A’s boss refuses to pay for X? Especially when X is cheap and readily available? And when A can choose another employer? And when A’s government could provide X directly without using force against a voluntary association? No, no, no, and no.
I can see no way to generalize the moral relationship between women who wish to use contraception and their Roman Catholic employers into a plausible moral principle that demonstrates that the RCC is coercively blocking their employees from acquiring and using contraception.
Compare Cher’s recent tweets on the matter: “Don’t believe in the Right wing’s effort to Subjugate women! WHO R THESE MEN WHO THINK THEY HAVE THE RIGHT TO TAKE WOMEN BACK TO THE STONE AGE!” The tweets go on, but Cher is incorrect (as is the similarly ridiculous Freedom From Religion Foundations’s NYTimes ad). Let’s be clear: no one is oppressing women. Instead, a religious organization doesn’t want to pay for contraception. That’s it.
The RCC may commit some other worrisome act in refusing to pay for contraception. But they are not coercing their employees not to use contraception. Authoritarians contend that if A refuses to buy X for B, that A uses coercion to prevent B from buying X. But that’s absurd.
The question for the liberal is therefore this: is there a sound public justification for the coercion that the Obama Administration proposes to employ against religious organizations?
II. The Mandate Cannot be Publicly Justified
There are two arguments that the mandate can be publicly justified. Both hold that the state’s interest in promoting and protecting women’s reproductive health overrides the liberty of the Roman Catholic Church. But this argument can be elaborated in two ways. First, one can admit that the liberty-interest of the RCC is legitimate, but maintain that it is overridden by the value of women’s health. Second, one can deny that the religious reasoning of the RCC has legitimate legal standing.
Harvard College administrator Erika Christakis makes the first argument, when she asks the following: “Why should an employer’s right to reject birth-control coverage trump a society’s collective imperative to reduce unintended pregnancy?” But this is illiberal. The liberal holds that religious liberty is a basic right. It is extremely hard to override even given the collective interest of society. Of course, the idea that society has such a collective imperative is implausible. But even the most ardent egalitarian Rawlsian has compelling reason to protect religious liberty against the violence of the democratic will. Rawls gives religious liberty lexical (that is, absolute) priority over other legislative matters. Christakis downplays the significance of the RCC’s religious liberty on the grounds that people have to do things they don’t like all the time. But she fails to distinguish between coercing people into doing things they dislike and forcing them to engage in serious immorality. Liberals have always argued that citizens deserve strong protections against the latter.
Molly Worthen, a professor of religious history at the University of Toronto, makes the second argument. She implausibly claims that:
When conservatives cry ‘freedom of religion’ and insist they mean something more than ‘freedom of worship,” this is what they mean: religious freedom is not just the freedom to gather in a room and pray one morning a week. It is the freedom to impose one’s own religious values on others.
The argument here is that religious liberty claims lack legal and constitutional standing in many cases because they entail the imposition of a particular religious view on those who reject it. But there is no plausible sense in which the RCC is imposing its religious views on its female employees. Even if many employer policies are coercive, their refusal to pay for contraception is not.
The same concerns plague the new policy, as the Obama Administration simply redirects the coercion in question to health insurance companies associated with the RCC. While many of these companies may not have conscientious objections to the mandate, they still lack sufficient reason to endorse the coercion in question. They have an arrangement with their RCC partners that both find satisfactory. The coercive alteration of this arrangement is groundless, as the arguments provided in its favor are unsound.
III. Obama against His Justices
Despite the diversity of religious liberty jurisprudence in the United States over the last three centuries, there is surprising agreement that substantial church-state disentanglement is a worthwhile and feasible goal. Consider the recent Hosanna-Tabor decision to protect the right of a religious school to discriminate against a female teacher on the basis of her disputed claim that she was validly ordained. The decision was unanimous, including the Obama Administration’s own Supreme Court Justices (Kagan and Sotomayor). The justices agreed that churches can fire teachers, that is, deprive them of long-held jobs, in the interest of maintaining their doctrinal integrity. The state’s interest in protecting women from discrimination does not apply here, or so three liberal, female justices concluded. But if churches can fire people over doctrinal issues, then surely they can refuse to pay for contraception on the same grounds.
Many commentators want to transcend and mock partisan wrangling on this topic and offer their own, new, cool angles. But let’s not forget the core issue: the Obama Administration is prepared to use force against a religious institution to promote its own scheme of values. This is illiberal, authoritarian, and cannot be implemented without injustice.