Friedrich Hayek (
by Steve Timmer
Mar 31, 2014, 4:30 PM

In an apparent economy move

The Star Tribune opinion pages recently consolidated all of its local right wing writers into a single febrile champion: opinion staff writer Doug Tice. It was a solid choice. Take Sunday, March 30th, for example.

(The photo is of Friedrich Hayek, not Col. Sanders, and not Doug Tice, either, but the libertarian Tice has built a little altar to the libertarian Hayek in his office, complete with burning joss sticks.)

In his recent piece, Editor Tice performs an attempted mocking of Justice Elena Kagan for her remarks in at oral argument in the Hobby Lobby case, which involves, as you know, contraception coverage requirements in the Affordable Care Act. Here’s what Justice Kagan said:

So one religious group could opt out of this, and another religious group could opt out of that, and everything would be piecemeal, and nothing would be uniform.

And Editor Tice, ever the wit, comments:

Freedom is a powerful nuisance when one’s goal is uniformity. The incompatibility of these two conditions is at the core of the latest Supreme Court test of Obamacare.

Well, okay, whatever you say, Doug. But then he goes on to write:

But isn’t that what it means to have religious freedom, freedom of conscience — that people’s right to be true to their own beliefs is more important than many things the community as a whole might prefer?

As it happens, social conservatives might, if they tried, be able to understand how progressives longing for health care uniformity feel. Conservatives have seen the shattering of various forms of uniformity they cherish. One of their nightmares, quickly becoming reality, is a society where “some people could define marriage one way, and some could define it another way, and nothing would be uniform.”

In another conservative nightmare, long since come true, “some people could believe life begins at conception, and others could believe that it doesn’t, and the very right to life would be a piecemeal affair …”

You did notice that little bit of legerdemain, didn’t you? So they’re all a piece to Doug.

Well, sort of, but not exactly. In the case of gay marriage and the freedom to choose to have an abortion, it’s about the claimed right to tell somebody else what to do, or refrain from doing, according to your religious principles or “conscience,” when it doesn’t affect you.

We heard this argument manifest itself in the gay marriage debate in 2012, “We have the right to not have to live in a world with icky married gay people.”

This is libertarian freedom: Freedom for me, but not for thee. It’s freedom for sociopaths.

What the Hobby Lobby case shares with gay marriage and freedom of choice debates is the authoritarian desire to control the practices of somebody else. Nobody is telling Hobby Lobby, or its owners, to wear a condom or use some other form of birth control.

There are a lot of things we tell employers they must do or refrain from doing with respect to their employees. They have to pay the minimum wage; they have to pay overtime; they can’t discriminate against applicants or employees on a variety of grounds, including religion.

If Hobby Lobby wins this one, how long is it before the opinion is used as grounds under the Religious Freedom Restoration Act to nullify large chunks of civil rights law, including parts of the 1964 Civil Rights Act itself? Or to actually require employees to sign pledges not to use birth control, on the theory that an employer should not have to pay employees who do things that contravene an employer’s religious beliefs?

Not long, my friends, not long.

(UpdateAnd here it comesFurther updateAnd more here.)

(Yet a further update: Consider this from a post at Balkinization, a blog by law professors:

As we have explained, a longstanding nonestablishment principle holds that the government may not lift a statutory burden on religious believers when doing so would shift that burden onto third parties who do not share those beliefs. In Estate of Thornton v. Caldor, the Court explained that “[t]he First Amendment . . . gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities.”

If that isn’t Hobby Lobby, you aren’t paying attention.)

But would a pacifist be relieved of paying the portion of income taxes that are used for military defense under the RFRA?

Don’t be silly.

Update: Why is uniformity important under the ACA? One of the reasons that the health insurance marketplace — are you listening, Doug? — works so poorly is that policies are so difficult to price compare due to their complexity. It is really a market information issue.

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