The mandate by the Department of Health and Human Services (HHS) that requires employers to provide insurance coverage for contraception and abortion-inducing drugs, and the litigation that has ensued over it, reveal two radically incompatible conceptions of rights. Examining those conceptions of liberty helps us to understand why compromise is impossible.
Among the religious claimants who have challenged the HHS mandate are a for-profit corporation, Hercules Industries, and its owners. In July, a United States District Court judge in Colorado issued a preliminary injunction preventing HHS from enforcing the mandate against Hercules Industries. The Obama administration has now appealed, signaling that it remains committed to its assault on religious liberty. Its reasoning is revealing.
HHS and its defenders appear to view rights, including rights to religious liberty, as grounded in individual interests, whatever those interests happen to be. Some people prefer to believe in numinous beings, which command certain conduct. Others happen to prefer consequence-free sex. The only question is which interest will be allowed to trump the other when they come into conflict. Given the dim view that HHS appears to take of religious conscience, to ask that question is to answer it.
Call this the Interest Conception of rights. In the Interest Conception, the various balancing tests that the Supreme Court has created to resolve religious liberty disputes are merely mechanisms for weighing competing individual interests.
Opponents of the administration’s policies view rights quite differently. Rights are grounded not merely in individual interests but more firmly in a common good, which is instantiated in choices by individual human beings, but in which those humans participate with others. The purpose of rights is to protect the freedom of humans to choose good ends. Because all human beings possess the capacity to choose, all human beings are entitled to equal rights.
But this does not entail that all people must have rights to exercise their freedom to choose in whatever way they want. There is a plurality of human goods, but not an infinite plurality. The value of some human goods—money and medicine, for example—is contingent upon the uses to which they are put. Other ends are simply not good. A choice to kill a human being is not worthy of respect; it is not equal to a choice to adopt a human being, for example.
Call this the Capacity Conception of rights. In the Capacity Conception, laws that create rights of religious liberty reflect the intrinsic value of religious exercise and its fundamental place in the ordering of human conduct toward a common good.
How did the Interest Conception come to prevail over the Capacity Conception in our national policies? One reason is HHS Secretary Kathleen Sebelius’s lack of concern for, and understanding of, religious liberty, which led to what Melissa Moschella has rightly described as Sebelius’s “appalling ignorance” of constitutional law. But had Secretary Sebelius acquainted herself with the law of religious liberty, she might not have changed her mind, as many legal experts have defended the legality of the HHS mandate. Unfortunately, the Interest Conception of rights has come in recent decades to inform legal interpretations of religious liberty protections.
In the two decades since the Supreme Court narrowed the class of religious liberty exemptions from neutral laws, both Congress and state legislatures have enacted numerous statutes designed to protect religious exercise. The federal judge in the Hercules case relied on one of those statutes, the Religious Freedom Restoration Act (RFRA), when he issued his injunction. RFRA requires the government to identify a compelling interest in support of a federal law that substantially burdens a claimant’s exercise of religion. If no such weighty interest can be found, or if the law is not narrowly tailored to protect that interest, then the law cannot be enforced against the religious claimant.
Different conceptions of rights lead to different interpretations of this statute. In the Capacity Conception, the burden placed on the state to justify its imposition on religion reflects the inherent importance of religious exercise, and the central role that religion plays within communities. In this view, only if the state has a very good reason—only if the state can explain how religious exercise poses a real and unavoidable threat to the common good—can the state’s regulation withstand scrutiny.
Those who hold the Interest Conception of rights can accept RFRA’s balancing test as long as the balance does not tip too far against their favored interests. In this view the religious liberty statute requires, at most, equality between religion and non-religion, and secures rights to engage in private conduct that has no effect on others. So, a state should offer kosher meals in its prisons, and a local planning board should not be permitted to discriminate against a church, mosque, or synagogue in favor of Wal-Mart or the Kiwanis Club. But the statute cannot authorize religious persons to impede another’s interest in receiving free or inexpensive contraception.
Here is the source of the difficulty: For some who hold the Interest Conception, their favored interest is religion. Thus, one finds defenders of the Interest Conception of rights among both scholars who favor restricting religious liberty and those who favor expanding it. Not surprisingly, one also encounters enthusiasm for the Interest Conception among some religious liberty claimants. A prisoner who wants to grow a beard in violation of prison regulations can find a religious mandate easily enough. A church that wants to lease its building to a catering business in contravention of a zoning ordinance has a plausible explanation why the arrangement will benefit the church’s religious exercise. The law is an expressive institution. That most religious actors are good neighbors does not erase from the law the legacy of those few that abuse their rights to be bad neighbors.
HHS portrayed Hercules Industries’ claim as part of this legacy of abuse. In its brief opposing Hercules Industries’ motion for an injunction, it raised the specter of business owners imposing their “alleged religious beliefs” on their employees. It accused the business owners of using the corporate form “alternatively as a shield and sword, depending on which suits them in any given circumstance,” as if defense of conscience were an act of caprice. And it insisted that the guiding principles of Hercules Industries’ management could not include religious or moral concerns because the company’s “overriding purpose is to make money.” A secular employer is incapable of harboring sincere religious beliefs, the government argued.
Against Hercules Industries’ allegedly disingenuous claim of a religious interest, HHS asked the court to weigh the state’s compelling interest in the health and autonomy of women and children. Bizarrely, it argued that employees’ failure to use contraception has “negative health consequences for… a developing fetus” (as if using contraception somehow produces better outcomes for the unborn child). It also argued that employers’ refusal to subsidize employees’ contraception imposes barriers to the economic advancement and social integration of women.
The health of unborn children and equal rights for women are weighty interests. But the government seemed to think that simply articulating those interests (if that is what it did) was enough. It did not bother to connect those interests to Hercules Industries, apart from asserting that the company’s female employees would be statistically less likely to use contraception unless the contraception were subsidized. Nor did it countenance the possibility that employees of Hercules Industries might actually benefit from the religious commitments of the company’s managers. It simply placed the competing interests into the scale and invited the court to choose one right over the other, in a zero-sum contest.
The impression that religion is primarily for religious people is tragically misleading. That some litigants invoke religion for selfish reasons should not cause us to doubt the link between religious exercise and the common good. In fact religious believers do a lot of good things for others through their institutions, whether those institutions are overtly religious or not. And religious people are often forceful advocates of the justice of laws that protect the most vulnerable people in secular society, particularly those at the very beginning and the very end of life, on grounds of religious conviction. The law must not be used to silence that advocacy.