The public discourse surrounding Burwell v. Hobby Lobby has focused on the substance of the issues presented. However, the principles and methods of argumentation used by those advocating for Hobby Lobby and religious liberty reveal a growing fusionist view of the broader conservative-libertarian movement.
American conservatism is best understood through the historical lens of fusionism. It is a view of the unique brand of conservatism found in the United States, rejecting both the cold utilitarianism of nineteenth-century classical liberalism and the authoritarian tendencies of nineteenth-century traditional conservatism. This is the understanding of conservatism that was shared by Barry Goldwater, Frank Meyer, William F. Buckley, Jr., and Ronald Reagan. It emphasizes common principles and is deeply rooted in the American Constitution.
In the past, I have discussed the basic principles upon which conservatives and libertarians agree. Within this shared set of principles, what Frank Meyer called the American Conservative Position, is a recognition of a belief in an objective moral order, the emphasis on the individual human person as the center of political thought, a preference against the use of state power to enforce uniform ideology, a rejection of centralized planning of human life, and an emphasis on constitutionalism and the preservation of western civilization.
Notably, the Hobby Lobby case not only served as a chance for pushing back against governmental intrusion on individual rights; it also provided an opportunity to highlight the rising fusionist chorus on the right.
A United Chorus of Conservatives and Libertarians
Religious liberty is the obvious starting point. Traditional conservatives and libertarian-conservatives across the nation have rallied behind the cause of defending this first principle. Princeton’s Robert George, a renowned traditional conservative, argues that the decision encompasses an understanding of religious belief and expression that is not restricted to prayers before meals and religious services. For religious believers, religious beliefs can find expression in every facet of their lives, and thus they should not be cavalierly oppressed by the state. Libertarian constitutional scholar Ilya Shapiro points out that the government lost its case because it tried to force Americans to live their lives in ways they found objectionable, arguing that individual liberty means no citizens have to “check their conscience at the office door.”
Moreover, throughout the public discourse surrounding the case, conservatives of all stripes united in opposition to the centralized planning of daily human life by the federal government. Cato Institute scholar Roger Pilon warns that the collectivization of any aspect of human life, especially healthcare, will force citizens to “fight for every ‘carve-out’ of liberty.” Professor Richard Epstein, an esteemed classical liberal law professor, describes the case by saying that “Hobby Lobby simply wanted to resist the imposition of state authority on its beliefs” and on those of the public at large. Ed Whelan, the conservative president of the Ethics and Public Policy Center and a former Scalia clerk, points out that the government failed to restrict religious liberty through the least-restrictive means.
Conservatives across the board sought to place the individual human at the center of the political debate by valuing individuals as something greater than the sum of their reproductive abilities. Law professor Helen Alvaré consistently argues that women should be able to speak for themselves. The left should not artificially limit women’s political concerns to contraception and abortion. In reality, women are rightfully concerned about a myriad of other issues beyond the narrow scope of Justice Ginsburg’s dissent. It is a disservice to presume, as Justice Ginsburg does, that women are not concerned with economic growth, national security, religious liberty, or the alleviation of poverty.
Same Conclusion, Different Reasoning about Hobby Lobby
Though there is near-unanimous approval of the outcome in Hobby Lobby, the differing reasoning highlights the differences between conservatives and libertarians. Perhaps the most significant of these differences is the conservative emphasis on religious belief as intrinsically valuable.
Wes Benedict, the executive director of the Libertarian Party, responded to Hobby Lobby case by stating “religion is not the issue.” In fact, the libertarian argument in defense of Hobby Lobby and religious exemptions is based solely in personal liberty. Libertarian defense of religious liberty, however, would stop the moment it begins to conflict with individual rights. Cato’s Roger Pilon has pointed out that the greater concern in Hobby Lobby is that that Court seemed to ignore the right of individuals to enter into contracts with employers free from government intrusion.
Conservatives, on the other hand, retain a view that places a premium on religious virtue for its own sake. The ability of the Green and Hahn families to run their companies according to their religious beliefs is not just a question of individual liberty, but of religious expression. In contrast to libertarian Ayn Rand, who described religious faith as “extremely detrimental to human life,” natural law proponents defend religious activity as intrinsically valuable and deserving of protection. This right to religious liberty is, of course, limited by the state’s interest in preserving justice and the common good. As Heritage scholar and Public Discourse editor Ryan Anderson has argued, the Religious Freedom Restoration Act codifies this nuance in US law: government can substantially burden a sincere religious belief only when acting for a compelling government interest in the least-restrictive way.
Libertarians seem most concerned with the reasoning by which the court should arrive at the protection of religious liberty, as it did in Hobby Lobby. Richard Epstein has asserted that the classical liberal argument against the HHS mandate is simply stronger than the religious-based argument against it. Yet Epstein seems to mistake the content of the religious belief of the Greens, Hahns, and millions of Americans as somehow negating any argument for individual liberty and the right to contract freely.
The protection of contract rights does not conflict with the religious liberty argument in the case of Hobby Lobby, though it may conflict in other instances. Conservatives would, for example, reject a right to freedom of contract in cases that degrade human life or human dignity, such as prostitution, euthanasia, abortion, or indentured servitude. Even some of these examples find support from libertarians who take pro-life positions rooted in liberty. In Hobby Lobby, however, the freedom to contract and religious liberty are not in conflict. In fact, there are very few instances in which conservatives would differ from libertarians on the scope of the freedom to contract. Such differences are much less significant in scope than the depth of the heritage shared by traditional conservatives and classical liberals.
Liberty and Virtue: Giving Strength through Tension
It is precisely these differences that strengthen the broader conservative-libertarian movement. The tension between conservatives and libertarians should not be regretted, but celebrated. Liberty is the means by which man pursues his right and virtuous end. Virtue is inaccessible unless it is chosen without coercion. Frank Meyer wrote that “freedom cannot be defined in terms of the end that a free person ought to choose.” Ordered liberty, like virtue, warrants defense and is valuable for its own sake.
The true threat to ordered liberty and human freedom is that religion’s significance will wane, and be replaced by what Mark Blitz calls “selfish materialism or illiberal religion.” By this he means to warn both of the rise of amoral self-obsessed libertinism and of religious beliefs that affirmatively reject liberty. This threat is prevented by the very tension permeating the space between conservatism and libertarianism.
The American conservative position uses traditional conservative respect for tradition and authority to contextualize and defend the dignity of individuals, communities, and institutions. At the same time, libertarianism ensures that these institutions, traditions, and communities do not envelop individual liberty.
The Constitution helps bridge this gap by establishing a limited government of enumerated powers. The founders designed a system of government by which harms perpetuated because of the imperfectibility of man and man-made institutions would be mitigated by a series of limits, checks, and balances. A key element to any worthy political order is the limiting of the power of some to impose their beliefs on all through the state. American conservatism is different from its nineteenth-century European predecessors precisely because it is rooted in the American constitutional experiment.
Within the pages of the Constitution, libertarians and conservatives have the tools to navigate the inevitable tension between liberty and virtue. Though not perfect, the American system of government, when properly understood, provides for the free pursuit of virtue and the protection of liberty for all.
At its best, American conservatism—broadly defined—is united in principle. It does not shy away from its internal disagreements but celebrates them as a strength.
Brandon James Smith is a lawyer in Washington, DC, and an adjunct professor at American University.