Wednesday’s ruling was a significant and welcome re-affirmation of a principle that, we should hope, is firmly entrenched in American constitutional law.
In the recent Hobby Lobby Case, Justices Elana Kagan and Sonia Sotomayor said that corporations that don’t want to pay for abortions should simply not provide any health insurance: “But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than — than the cost of health insurance at all?” Dissenters from the official line must pay a tax. That sounds familiar.
Muslim lands used to practice Dhimmitude–the practice of allowing non-Muslims who subscribed to other “Abrahamic” faiths, to practice their religion freely, provided they pay a tax. For most of the centuries since Muhammed, Jews have been, as a rule, better off in Muslim lands, compared with Christian lands. But that does not mean Muslims treated Jews (or Christians) as equals. Recall that Moses Maimonides, one of the great Rabbis of the “golden age” of Medieval Islam, had to flee Islamic prosecution. Dhimmitude reflected the idea that non-Muslim monotheists were allowed to live in Muslim lands (note that term), provided they paid a tax as a badge of inferiority and, implicitly, submission. America was, is, supposed to be different, and not just for Jews.
In colonial America and in England in the first two centuries of colonial settlement, most colonies had established churches. Depending upon the year and the exact location, those who were non-Anglican (in Virginia) or non-Congregationalist (in Massachusetts), to take two signal examples, were either officially barred from living in the colony, or allowed to live there, but subjected to disabilities. In Virginia until the eve of the American Revolution non-Anglicans could not, officially, be married in the colony, as Anglicanism was the only recognized faith, and, therefore, no non-Anglican ministers had legal standing to perform marriages. (The Puritans believing that marriage was a civil affair left marriages to the Justice of the Peace. But Quakers, Baptists, and others lived under various disabilities there, too, once they were admitted to the colony legally. In the seventeenth century, Quakers who refused to leave the colony were executed). In England the story was similar. The United States removed most such disabilities, in most states, in the wake of the American revolution. In England, disabilities on Catholics were ended in 1829. It took longer for Jews to receive the right to vote and to sit in the House of Commons.
Are we heading back in the direction of religious disabilities? I hope not, but the Hobby Lobby case, and some other recent developments and comments suggest that we might be. Not long ago, Joyce Appleby, a leading scholar of the American Revolution, and a past President of both the American Historical Association and the Organization of American Historians, asked if Catholic judges should recuse themselves from cases where Catholic doctrine takes a position. That certainly sounds like religious disability, and a religious test for office, to me. And if Catholic Justices should recuse themselves from cases involving gay marriage, as Professor Appleby suggests, the same logic would certainly apply to many religiously observant Muslims and Jews. (But would it not, also, apply equally to “Progressive” Christian, Jews, and Muslims who support gay marriage as a matter of what they take to be religious principle?)
Dhimmitude also required non-Muslims to minimize public expressions of faith. The Air Force recently required a Cadet to erase a verse from Galatians from his own white board. He can only write such things in the privacy of his own room, the officials say. Is that different from the old disability? Would a message supporting gay marriage or legal abortion be treated differently?
To be sure, some say that the Hobby Lobby case involves the rights of a corporation, and not an individual. In practice, however, that is a distinction without difference. Since before the founding era, corporations have enjoyed civil rights at law. Moreover, the American tradition is one of allowing the creators and owners of corporations to infuse them with their religious and ethical ideals. A corporation owned by Jews is allowed to insist that employees do not put ham sandwiches in the refrigerator. Similarly, a Christian businessman is allowed to put up a cross at his place of business, to close on Sundays, and to post Biblical phrases on the walls–at least I hope that’s still the case. All that was always understood to be perfectly compatible with the reality that a business corporation is a separate entity than the owners of the business. A business corporation is, in some ways, merely a form of civil association. In this sense, there is little difference between, say, the Boy Scouts of America and Hobby Lobby.
The back story here is worth pondering. Americans of all stripes, most of them at least, consider religious liberty to be one of the signal achievements of the era of the American revolution. Why, then, are “Progressives” so hostile to the religious pluralism that inevitably results from religious liberty?
There are, it seems, two (or at least two) models of religious liberty. Progressives historicize their reading of religious liberty. In the eighteenth and nineteenth centuries, religious liberty was a step “forward” in “history.” Today, “progress” should move on from there. Recall, in this context, Jefferson’s belief that, thanks to religious liberty, “I trust there is not a young man now living in the United States who will not die a Unitarian.” Like some men of the Enlightenment, Jefferson believed that religion, as it had often been known in history, was an historical accident or, at least, a phase that could be outgrown, or overcome. In time, thanks to the end of religious establishments, men would turn to more rational and more moderate “religious” ideas.
Jump to the start of the twenty-first century, and the Progressive side of American culture thinks that project should be largely completed. Hence religion, as it used to be known, may be relegated to very small areas of our lives–our homes, our church buildings, and the like. In the Age of Jackson, perhaps, there was robust, open argument among religious sects, and between religious and secular (recall the great debate between Campbell and Owen). But that’s long ago. Religion, from this “progressives” perspective, should not shape our doings in civil society, and certainly not our public policies.
Hence to suggest that Catholics, or Jews, or Muslims, must recuse themselves from certain cases, or to suggest that business owners who are religious should pay a tax in order to live their faith, is not seen as a return to the bad old days. On the contrary, allowing such “outdated” “values” to invade civil society in any great degree is seen as a step “backward.” This contrasts with the belief that religion is here to stay, and, therefore, disestablishment is not seen as merely a “step forward” in history, to be superceded by subsequent steps.
In previous ages, of course, America had a much smaller state, and fewer regulations. That’s the other side of the story. Were there no health care mandate, then, presumably, the owners of Hobby Lobby would be free to buy whatever form of insurance they choose. And the owners of Hobby Lobby, being religious, may believe it is their duty to provide health insurance for their employees. That may be inseparable, to them, from closing on Sundays.
The hyper-regulatory state, which Obamacare exemplifies, rejects such an approach. If they don’t like it, they can pay the tax. Justice Kagan noted that the tendency of Hobby Lobby’s argument is to break up the uniformity of national health insurance regulations: “everything would be piecemeal. Nothing would be uniform.” The spirit or health care reform (and I use the term “spirit” advisedly ) is one of uniformity rather than one that allows for diversity.
But why is that a good? Where is it written that in a large, diverse republic of over 300 million citizens, and with over 18 million business corporations there should be one, uniform, health care policy for all. Does one size fit all in a republic such as ours? Doubtful. Can a republic so large, diverse, and multifarious have a uniform health care policy without tyranny? Perhaps not. It may very well be that any such policy will require too much force and not enough local and personal variation.
In our discussion we keep hearing about the “American health care system.” Is there such a thing? Should there be? To be sure, we have a Veterans health care system. To a degree we have a system of health care payment for the poor (Medicaid) and another one for the aged (Medicare). But does the entire practice of medicine, and our use of health care as citizens really constitute a “system”? Are we to be, like Charlie Chaplain in Modern Times part of a giant health care machine? In a large, free, and diverse republic, do we want such uniformity and the conformity that goes with it? We do not have a national bakery system to produce bread for American citizens, and yet, somehow, most of us are able to buy bread. Why would the same kind of diversity be bad in medicine?
It is no coincidence that James Madison fought against “Consolidation” and held that the rights of conscience were fundamental.
More sparingly should this praise be allowed to a government, where a man’s religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy. Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and unalienable right. To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.
Madison recognized that the right to use our property as we wish, and the right to manage our business affairs as we choose, was essential if we wish to protect the rights of conscience. A “consolidated” (ie: uniform) health care policy cannot, in other words, be reconciled with a regime that gives robust protection to the rights of conscience.
And that returns us to our point of departure. It may very well be that in order to have a “national health care system” we will have to make serious ethical choices about what is covered and what is not covered, and how it is or is not covered. Such choices are, I submit, inevitably religious. Recall that Thurman Arnold, a leading New Dealer spoke of a “religion of government.” Joseph Bottom’s new book suggests something similar. Progressivism has become a religion. To be sure it calls itself “secular” and it defines its beliefs as “reason,” but those are abuses of definition, for unless we can establish moral truth with the same certainty we can establish, for example, the pythagorean theorem, then ethics is based on faith–at least if one accepts that the scientific method is the standard for reason. If we follow Aristotle’s definition of reason, then we’re in a different discussion. Such a discussion, however, would have to consider Aquinas’ understanding of “natural law” to be reason, and not faith.
In our national health care system, if we have such a thing, we are not just talking about covering abortion and other such procedures. Deciding how much money it is worth spending on, for example, end of life care, or on children with Down syndrome is inevitably a religious question. (If, as some Progressives seem to think, it is irresponsible to have a child with Down syndrome, then, logic would suggest that people who make that choice should pay extra to cover some of the burden their choice will impose on their fellow tax payers. Note, again, absent nationalized payment for health care, that question does not arise).
Men of the radical Enlightenment, ancestors of the Progressives today, thought that there would be no real diversity of religion in the modern world, for we would all, ultimately, agree about the significant ethical questions. History has drawn that judgment into question. The idea that religion is dying out is a sad remnant of a bygone age. Moreover, the fewer things government does, and the fewer decisions it regulates, the more likely it is that public policy will be able to reflect a larger agreement. On the other hand, the more government is involved in our lives, the more likely it is that government and conscience will clash. If the state, and our thicket of regulations continue to grow, the idea that religious people should have to pay a special tax will be but a step on the road toward a post-modern form of religious establishment.