Whose Religious Liberty? What Value Pluralism? What Attention Span?

Caveat: I know that this is off-message and we’re all supposed to be fighting over whether or not Paul Ryan is a lunatic or a fiscal hawk and so on and so forth. I know we’re supposed to be digging through his record to discover shiny little hypocrisy baubles or courage trinkets. I know, I know, I know, but I write about government’s size and spending often enough already. I have nothing witty or pithy to say about Rep. Ryan.[1] Please consider this an entremet


The Catholic Church’s “Fortnight for Freedom” campaign was supposed to prompt more discussion of contraception’s inclusion in all employer-provided health care plans. This would have been great, given that the first round of debate was disappointing (this winter/spring). I’d hoped that the Church’s attempt to resuscitate the issue would get it started once more…but unfortunately, the public scarcely noticed, distracted as it was by the status of Willard Mitt Romney’s tax returns, the Olympics, the League’s recent symposia, and so on and so forth. But no—the discussion remained stultified, since many sought to reduce the issue to a very limited understanding of organizational religious liberty. To hear them talk, the whole argument over contraception can be settled by simply referring to religious organizations’ right to reduce their insurance coverage to match their theological convictions. This narrow emphasis has distorted the debate in strange and confusing ways.

Surely we can do better. Value pluralism is central to the American tradition. Sometimes (often?) we sacrifice public health in order to maintain greater individual liberty. Sometimes (again…often?) we privilege individual prosperity over social equality. Americans know (knew?)how to reflect on the tension between various political goods. This balanced approach has been sorely missing from recent contraception debates. Why have the other relevant public goods gone missing?

Why, for example, has there been so little discussion paid to individual religious liberty? Employers that tailor their health insurance to their religious convictions impose formal and informal constraints upon employees of other faiths. What’s more, many Catholics also take advantage of individual religious liberty to use contraception. Though some Catholic leaders claim to be defending aggrieved Catholics everywhere from government interference, there’s significant evidence that no such consensus exists. The overwhelming majority of Catholic women use birth control. Catholics are split on the new HHS rules. Why hasn’t any of this gotten much attention?

Or what about equality and public health? Contraception has helped hundreds of millions of Americans to build a family they can materially support. Increased access to birth control yields substantial increases in economic mobility for women and their families. Women with easy access to contraception have more education, more professional success, stronger marriages, safer pregnancies, and healthier children. Women are more likely than men to invest their income in their families. Professionally successful mothers drive their families’ economic and social mobility.

That’s why insurance companies have agreed to foot the bill for contraception as part of the HHS compromise proposal—they know that family planning saves them money in the long run. Healthier women and families are better for their bottom line. Isn’t an efficient health care system something worth taking into account?

Opponents of the new rules insist that these other public goods are of no consequence compared with religious organizations’ ability to determine the scope of their own health insurance coverage. This means that our debates don’t just miss the boat—they sail past the harbor. And that’s a shame, since individual liberty, social mobility, economic opportunity, gender equality, public health, strong families and marriages, national prosperity, and an efficient health care system are precisely the sorts of goods we should consider when determining the scope of health care coverage.

Let’s be fair. None of these considerations is singularly conclusive. That would mirror the mistake of those who are prioritize organizational religious liberty above all else. But surely these goods are relevant. Surely they don’t simply evaporate if we insist that organizational religious liberty is crucially important. What if reduced contraception coverage causes an additional 10,000 new children born into poverty next year? What if it leads to increases in the pay gap between men and women?

I’ma say it again: None of the foregoing means that organizational religious liberty is irrelevant. It just means that there are other, enormously important considerations that opponents to the new rules haven’t taken seriously. And that means that our public discussions have fallen far short of American standards for fair, comprehensive debates—which is surely a public good we can all support.

[1] Well, almost nothing. I DO think that all posts treating Rep. Ryan’s views on gay marriage should include the following: “Hey! If Paul Ryan married Ron Paul and took his last name, he’d be named ‘Paul Paul!’”


Conor P. Williams is a failed Catholic and a failed agnostic. Now he reads too much Niebuhr and wills to believe. Williams writes and teaches in Washington, D.C. More: FacebookTwitter, and at http://www.conorpwilliams.com. His email address is punditconor@gmail.com.

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168 thoughts on “Whose Religious Liberty? What Value Pluralism? What Attention Span?

  1. Conor,

    I agree with much of what you say here. Indeed our policies nearly always require a balancing of interests, and as someone who personally has benefited from the availability of birth control I’ wholly supportive of your arguments about its benefits. Where I have trouble is with the following:

    Why, for example, has there been so little discussion paid to individual religious liberty? Employers that tailor their health insurance to their religious convictions impose formal and informal constraints upon employees of other faiths

    I would approach this in two ways. First, is it in fact true that the employer is imposing a constraint on the employee by not offering birth control as part of a health insurance package? Some employers offer no health insurance, do by extension they would seem to be imposing massively greater restraints on their employees. But that doesn’t sound like a meaningful claim to me. They’re not imposing something a constraint on their employees, they’re just not offering them the means to avoid certain constraints. Until recently my employer did not offer vision coverage–was my employer imposing a constraint on me? I just don’t see it.

    Second, the phrasing here seems to imply that there is an individual religious right to be granted a particular benefit. This is a tricky area. Employers are required to accommodate persons sincerely held religious beliefs to the extent tat doing so does not impose a hardship on the employer, but that’s about accommodating religious duties, actions the devout individual believes they are required to take. But here you are proposing a religious right to accommodation on actions that the individual’s faith does not require, but simply allows. That’s a substantively different conceptionofvreligious liberty, and,it seems to me, a very dubious one. Religions allow all sorts of things–do we really want to say individuals have a religious freedom right to require their employer to provide all those things that are allowed?

    I’m not trying to shut down the effort to find a coherent justification for the birth control mandate, but if there is one, I think you’re going to find t in the argument about the benefits of birth control, not in employees’ religious freedom.

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    • I agree with this critique, James. One can speak of a right to a particular benefit, as the Catholic Church does for healthcare and other goods, but these are not religious rights so much as rights due to human beings.

      On the flip side, if the Catholic Church saw birth control as a particular kind of healthcare good, instead of something intrinsically immoral, they wouldn’t be putting up a fight. So you’re right that the justification for the HHS mandate would probably need to rest on arguments about the benefits and moral goodness of birth control. At least, I think that’s where the strongest argument can be made: the church’s religious freedom isn’t significantly violated because its stance of birth control is morally wrong. But, of course, the Church wouldn’t be able to switch its stance on contraception without some serious changes to how it understands and presents it teaching authority, so we won’t be seeing a switch any time soon, if ever.

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    • Point taken, though I’d note that the post doesn’t try “to find a coherent justification for the birth control mandate…in employees’ religious freedom.” It’s trying to point out that our arguments about the mandate have become very uptight, very un-Dude. The example you’re quibbling with is but one of the relevant considerations that have been inadequately discussed. That’s why it’s just one sentence. There’s also the matter of interplay between various levels of the Catholic institutional hierarchy vs. the laity, questions of public health, efficient distribution of health care, etc.

      Per the post’s closing: none of these is a knockdown claim on its own…but they’re certainly relevant questions. I’m not sure that I have a coherent defense of the mandate, though I have a pile of disconnected reasons that I think it’s good policy.

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    • First, is it in fact true that the employer is imposing a constraint on the employee by not offering birth control as part of a health insurance package? Some employers offer no health insurance, do by extension they would seem to be imposing massively greater restraints on their employees. But that doesn’t sound like a meaningful claim to me. They’re not imposing something a constraint on their employees, they’re just not offering them the means to avoid certain constraints.

      Regarding this part.

      At least within the narrow context of the HHS ruling, this is somewhat immaterial, because a large employer who doesn’t offer health insurance coverage pays a tax assessment so that you can get subsidized health insurance coverage on the state exchanges. As a result, it’s not so much a constraint when you consider you’re able to go out and buy coverage as a result of their choice not to offer health insurance.

      What’s different about the Catholic absurdity is that they’re not willing to pay the tax penalty and instead are demanding that they be allowed to exclude certain categories of products from compensation the state has mandated in order to fall under the rubric of health insurance. This strikes me as off and a constraint in so much as they’re essentially saying their right to institutional religious belief overrides your right to minimal standards of what constitutes “health insurance” as a part of your compensation package.

      Substantively it also translates into an attempt to impose religious values upon an employee by forcing them to accept the religious valuation of a particular good or service as being more important than their own right to adequate compensation.

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    • First, is it in fact true that the employer is imposing a constraint on the employee by not offering birth control as part of a health insurance package?

      In a system of universally required healthcare coverage as we are moving towards under law: YES. They are being denied something that everyone – even those currently without insurance – is allowed the individual liberty to choose either to use, or not to use.

      In a system such as Canada’s, which kicks the everloving dung out of the crappy FYIGM-Libertarian “every man for himself” system the other side wants to move to: YES.

      Second, the phrasing here seems to imply that there is an individual religious right to be granted a particular benefit.

      No, the point is that there is an individual right not to have your employer try to impose their religious views on you. An employer cannot require you to participate in prayer. They cannot require you to issue verbal acknowledgement of their deity’s superiority, something coming due to kick the hatemongers at Chick-Fil-A in court soon due to the chain’s pattern of treatment of Muslim employees.

      The individual liberty of millions of Americans to practice their religion and their conscience should not be impacted upon, nor restricted by, the neanderthal views of a former Hitler Youth who slimed his way into the papacy.

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  2. Let’s be fair. None of these considerations is singularly conclusive. That would mirror the mistake of those who are prioritize organizational religious liberty above all else. But surely these goods are relevant. Surely they don’t simply evaporate if we insist that organizational religious liberty is crucially important. What if reduced contraception coverage causes an additional 10,000 new children born into poverty next year? What if it leads to increases in the pay gap between men and women?

    I’ma say it again: None of the foregoing means that organizational religious liberty is irrelevant. It just means that there are other, enormously important considerations that opponents to the new rules haven’t taken seriously. And that means that our public discussions have fallen far short of American standards for fair, comprehensive debates—which is surely a public good we can all support.

    Part of the difficulty here is that the Catholic Church hierarchy classifies contraceptives as intrinsically immoral–wrong in all situations and circumstances regardless of the benefits–which puts it in a position of not having any room–or at least very little room–to compromise.

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        • Point of order; I don’t think you’re necessarily correct about that. I think this is something the church would very much like for people to believe, but given the number of people who have recently been excommunicated for receiving/facilitating abortions in life-threatening situations, I don’t think they’re actually applying this as a rule.

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                • Well, with due respect, the church did this: http://thinkprogress.org/health/2012/05/25/490171/brazil-excommunication-for-abortion/ and http://en.wikipedia.org/wiki/Excommunication_of_Margaret_McBride

                  However, let’s suppose for a minute that abortion is off the table, and instead we will only focus on contraceptive use. If the church finds contraceptive use acceptable when it is used to treat a “serious condition,” then why are institutions objecting to paying for it? Why is the church throwing this hissy fit?

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                  • Oh, I know that the church did that, Sam. I’m already all over that.

                    If the church finds contraceptive use acceptable when it is used to treat a “serious condition,” then why are institutions objecting to paying for it? Why is the church throwing this hissy fit?

                    Thwarted entitlement. You wouldn’t believe what some people think they’re entitled to… and how they react when someone else tells them “no”.

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                    • So those examples don’t matter?

                      Matter for what?

                      A discussion about whether The Catholic Church has some fairly vile nooks and crannies and provides an excellent argument for how poisonous religion can be once it gets power? Sure.

                      As an example in an argument about contraception being covered by catholic employers? It’s kinda creepy.

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                    • I think both are examples of the Church’s lack of commitment to the idea that medical treatment can be acceptable in serious cases. They’re extreme, sure, but they illustrate the point.

                      My only point was that I don’t think Marchmaine is correct here. Is he?

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                  • Yeah, the funny thing about that, when we asked for examples of those libertarians arguing that position, the examples provided weren’t exactly examples of libertarians arguing that, exactly.

                    This is the flip side of the strawman argument: if nobody is arguing that position, the argument can still be classified as a strawman.

                    Fnord pointed out that Ron Paul has said some things about sexual harassment law and Rod pointed out that someone in the comments to a BHL post discussed sex work and whether a boss could fire a sex worker who refused to have sex (which, I daresay, falls outside of the scope of most of the conversations in which people discuss bosses telling employees to have sex).

                    As such, I’m still waiting for a citation of a Libertarian defending this argument even half as much as, say, Clinton was defended for his behavior with Paula Jones by folks on the left.

                    Saying “well, Libertarians *SHOULD* argue this way, if they really believed that there’s nothing that people shouldn’t be able to contract!!!” and then arguing against that position is, yes, arguing against a strawman.

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                    • Oh drat…i found some comments from self-described libertarians saying those things but i didn’t post them since i thought the argument was silly and if you look hard enough you can find embarrasing comments from some member of every group/belief/political belief on the web.

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                    • I’m sure that they were awesome examples too.

                      How’s this? I’ll say that the argument isn’t a strawman based on your assertion that you, seriously, found some comments on a webpage from self-described libertarians if you agree that someone on our webpage (indeed, on this very page) conflating abortion and contraception counts as an example of someone conflating abortion and contraception.

                      Deal?

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                    • JB, I think you’re wrong about. Here’s a quotation from Chris Bertram at Crooked TImber that sums up the problem at a conceptual level (an issue I’ve had several discussion with libertarians about, James H especially):

                      Libertarianism is a philosophy of individual freedom. Or so its adherents claim. But with their single-minded defense of the rights of property and contract, libertarians cannot come to grips with the systemic denial of freedom in private regimes of power, particularly the workplace. When they do try to address that unfreedom, as a group of academic libertarians calling themselves “Bleeding Heart Libertarians” have done in recent months, they wind up traveling down one of two paths: Either they give up their exclusive focus on the state and become something like garden-variety liberals or they reveal that they are not the defenders of freedom they claim to be.

                      http://crookedtimber.org/2012/07/01/let-it-bleed-libertarianism-and-the-workplace/

                      And here’s a quotation with some commentary about workplace coercion and contracts from Jessica Flanigan (libertarian at BHL) and some commentary on it from Chris Bertram (not a libertarian) at CT:

                      Flanigan, though a philosopher, is also a paid-up libertarian, so, I think a fairer target. Here’s her reaction at BHL to the case:

                      “My intuition is that something like (b) [abrubt change in job description] makes sexual harassment wrong. In these extreme cases employees do have the authority to decline certain tasks that employers demand. In this case the employee may say ‘you lead me to believe that the job did not require prostitution, so I have been deceived.’ Because it is wrong to deceive people, it is wrong to radically change a person’s job description, and so threatening to fire someone for refusing to comply with an impermissible demand is also impermissible.”

                      Naturally, I’m relieved to discover that Flanigan does think that “fuck me or get fired” is wrong. But the explanation which her libertarianism pushes her to – “sex wasn’t in the contract” – still strikes me as bizarre.

                      http://crookedtimber.org/2012/05/29/fuck-me-or-youre-fired/

                      Somewhere in all that you’ll find the argument you’re insisting is a strawman.

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                    • Actually i think it better if people talk directly to each other instead of ascribing an entire groups beliefs to each of us. Most of us are ecelctic in our beliefs and almost no one completly subscribes to a list of group beliefs and,whats more, most beliefs don’t actually have lists of official beliefs.

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                    • Correct me if I’m wrong but isn’t that saying “you shouldn’t think it’s wrong for those reasons, you should think it’s wrong for these other reasons” being used as justification for arguing that those people argue the opposite of “it’s wrong”?

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                    • JB, Flanigan is providing an analysis in her comment. She is proposing that the thing that makes workplace harassment wrong isn’t the harassment part, but the contract violationpart.

                      On a strong reading (the only one consistent with her argument) her analysis would be that workplace harassment is impermissible if, and only if, it’s not included in the voluntarily agreed to contract. So in principle, employer harassment is permissible if some conditions are met.

                      Maybe she has a weaker thesis in mind – that workplace harassment is impermissible if (rather than ‘and only if’) it violates the contract – in which case she might hold other reasons to think harassment would still be wrong. But if so, she must go outside the (libertarian) limitations of analyzing the problem strictly in terms of contracts and the role of the state, then her libertarianism (potentially!) devolves to what Bertram called “garden variety liberalism”. That’s the dilemma Bertram is highlighting: libertarianism either must bite the bullet and say that harassment in the workplace is permissible iff it’s entailed by the voluntarily agreed to contract, or become (on this issue!) “garden variety liberals”.

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                    • Excellent. I think it’s a good topic to pursue.

                      Btw, there’s been an ongoing discussion about this very topic at CT and BHL, which I wasn’t aware of until this sub-thread began (I found those Bertram and Flanigan quotes sorta by accident).

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                    • So in principle, employer harassment is permissible if some conditions are met.

                      Is that a controversial claim? Set aside the term “harassment” for a moment, which presumes the conclusion, and get back to “employer demands for sex.” Is it not obviously permissible if some conditions are met?

                      Let’s say Jody is a prostitute. She gets tired of the risk of having sex with strangers, so she negotiates with one client to employ her as a live-in maid and sexual partner. One day she decides she’s not going to have sex with him anymore. Can he not legitimately demand that she have sex or fire her if she does not?

                      Yes, that’s an extreme example, and it’s not the core issue about which we’re concerned. But it does demonstrate, I think, that there are conditions that make the “sleep with me or be fired” demand legitimate.

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          • On the point of order, yes.

            It is a matter of prudence, not doctrine, so there will be many formulations and thoughts on the principles involved. The USCCB puts out one such guideline:

            “Operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.”

            http://www.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition-2009.pdf

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        • Marchmaine,

          I won’t pretend to actually know anything about Catholic theology and doctrine. But before writing that comment, I did see this:

          For Catholics, Our Holy Father, John Paul II stated more than 15 years ago that “Contraception is to be judged so profoundly illicit that it can never be justified for any reason.” This seems to close the door on any attempt to use birth control pills for “medical reasons” if there is ever any possibility of a contraceptive effect.

          So I suspect there’s some debate about that. But I prefer your position on the issue to the one I quoted, so I hope that you are the one who’s correct.

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          • Thanks James… I tracked down the quotation to a public address quoted in part in the Wanderer in 1983. The limited context appears to be the strongest possible rejection of contraception qua contraception (which I believe he would have said). Tacking on the “seems to imply” part is in my opinion disingenuous and an attempt to lend magisterial authority to their argument.

            The rest of the article is really arguing a very narrow case about the proportionality of using contraception “to regulate a woman’s menstrual cycle when they are irregular or to reduce the severity of extreme menstrual pain.” And that is precisely the prudential proportionality that would need to be weighed.

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    • There’s a certain point where moral relevance must be questioned if they can’t even get a plurality, much less a majority of their own followers to accept the moral valuation of contraceptives. That is to say, if they can’t even persuade people of their own creed of the intrinsic evil of contraception, then they don’t really have standing to be demanding the government let them enforce this belief by allowing them to withhold compensation from their employees, not all of whom are co-religionists.

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    • This is a great point, and related to a piece by David Henderson at Econlog today.

      econlog.econlib.org/archives/2012/08/ethel_rosenberg.html

      Ethel Rosenberg was a Communist, but unfortunately the point holds for contemporary libs as well. Ie, the essential structure of lib advocay works more or less like this: “I want what I want because I want it.” Better education, stronger marriages, etc., are way beyond Conor’s ability to deliver on, but he certainly can take away Americans’ religious freedom in the attempt nonetheless. Ie, in order to make my omelette, we have to break your eggs.

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        • But it is related. The OP wants to throw other people’s religious liberty into a mix that he can prioritize according to this or that.

          “And that’s a shame, since individual liberty, social mobility, economic opportunity, gender equality, public health, strong families and marriages, national prosperity, and an efficient health care system are precisely the sorts of goods we should consider when determining the scope of health care coverage.”

          Ie, we, or in practice me, get to decide how to mix and match these things, therefore attempting to reframe the situation to appear reasonable and prudent, when in fact it’s merely implementing my preferences at the expense of yours.

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          • Except nothing you’ve said implies that it’s merely preferences. Nothing anyone’s said here implies that. You’ve merely thrown it into the mix because it’s what you already believed. In other words, Koz will be Koz.

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            • But it’s not merely preferences, that’s the issue. It wasn’t for Ethel Rosenberg, it wasn’t for PPACA, it’s not for libs in general. In fact, any lib who merely expresses their opinions as preferences and allows them to work their way through our political process culture is not respected by fellow libs and is widely suspected of being a weak sister.

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              • So when you write, “in fact it’s merely implementing my preferences at the expense of yours,” what you really meant is, “in fact it’s not merely implementing my preferences at the expense of yours? It’s actually more than that.” Got ya.

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                • Chris, I’m afraid we’re talking past each other, and I’m not quite following your responses. In any event, the point being is that in general we should not ascribe good motives to lib advocacy in the political culture. For the most part, the corruption, bad policy, economic privation and the rest of it are not unpredictable or unforseen consequences of the Left political advocacy. A la Ethel Rosenberg, they know reasonably well what they’re getting into.

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  3. My issue with the Catholic position on the new coverage rules is simple. When does agency cease to be engaged? At what level of remove can one safely be said to be morally separated from an act? The Catholic hierarchy has placed this bar very high indeed, but only on certain kinds of activities, to wit:

    1) I produce labor
    2) I am compensated for that labor with cash
    3) I buy condoms or birth control pills with that cash

    At a remove of only 2 levels, the Catholic church cannot (or chooses not to) impose a restriction on this activity. They could make every employee sign a moral turpitude clause preventing them from purchasing birth control. It would be tough to enforce and would likely get struck down eventually, but they could do so.

    1) I produce labor
    2) I am compensated for that labor with a health insurance policy
    3) That insurance policy may provide me (or someone else entirely) with birth control.

    This is deemed unacceptable. It’s at least the same level of remove from an agency standpoint. It might even be one more level of remove or more (depending on my circumstances). Why, exactly?

    It makes no sense. None whatsoever.

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    • We have to draw lines somewhere, and it’s not clear to me where the lines should be drawn. That is, I’m not sure it makes sense to draw the line where the Church is drawing it, but I’m not sure it makes “no sense,” either.

      Does the line actually have to be drawn at direct agency? The Church would be morally culpable if they included condoms or birth control pills in your pay envelope, even though you wouldn’t have to use them, right? So is providing you a compensation package that includes birth control closer to that category or closer to the “we can’t tell you what to do with your money” category?

      It seems to me that it’s closer to the first. That doesn’t mean there may not be a discernible line between putting them in your paycheck and including them in another part of your compensation package. But it seems to me to be relevant that “birth control in health care” is closer to “handing out birth control” than to “buying birth control on your own.”

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      • Part of why I find the Catholic Church’s position here so offensive is that, while it might not be the case here, this logic could easily be extended to more expensive health interventions in a way that has the de facto effect of making those sorts of health care procedures inaccessible to employees of catholic organizations. Since we have a (bad, terrible, inefficient) system in which health insurance is generally obtained through one’s employer, the religious liberty claim would seem to me to actually be a claim that they have the right to coerce their employees. So if, an employer decided they had a moral objection to tubal ligation, or to organ transplants, or to who knows what else, this sort of logic would lead to places that I am not even slightly comfortable with.

        The fact that the Catholic Church’s position on the morality of contraception is so out of step with the general population and their own laity and is so inconsistent with the welfare and autonomy of women only makes this issue more frustrating for me.

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        • The Catholic Church is spoiling for a fight, and is making an ass out of itself in the meantime.
          It’s a fight they will lose, and one that the previous pope would have known better than to fight.
          All the Pope’s credibility and goodwill is vanishing before his eyes.

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        • So if, an employer decided they had a moral objection to tubal ligation, or to organ transplants, or to who knows what else, this sort of logic would lead to places that I am not even slightly comfortable with.

          Even if counter-intuitive, I think we have to bite the bullet and say that mosques and muslim organisations can refuse to rovide coverage for organ donation if they feel that their religious traditions forbid such. I don’t know what the situation in America is, but at least some Muslims feel that when judgement day comes and their bodies are resurrected, they must be whole and not mutilated in order to enter Heaven. While we may wish that they didn’t believe as such, it is improper to use coercive state institutions to deny them te right to express such religious commitments in non-coercive action.

          Is failure to provide health insurance of a certain kind coercive? No.* To lean rather crudely on Rawls a bit, the priority of liberty means that we cannot sacrifice our basic liberties in order to improve the lot of the worse off. The basic liberties always come first.

          Also, whether or not most Catholics think birth control is forbidden is beside the point. Most Hindus in Singapore don’t think being vegetarian is a religous requirement. Yet, I take the religious strictures against eating meat seriously, even if I don’t take many other strictures seriously. Yet, my freedom of conscience/religion is clearly violated if I am forced to eat meat, or forced to handle meat etc. The point of religious freedom is freedom of conscience. It is not just what is formally required by the central religious body (if there is one) Rather it is the freedom for each person to pursue one’s most central, moral, religious or philosophical commitments consistent with the similar freedom for everyone else.

          *Of course, neither is failure to be exempt from a non-punitive tax.

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          • “Even if counter-intuitive, I think we have to bite the bullet and say that mosques and muslim organisations can refuse to rovide coverage for organ donation if they feel that their religious traditions forbid such. I don’t know what the situation in America is, but at least some Muslims feel that when judgement day comes and their bodies are resurrected, they must be whole and not mutilated in order to enter Heaven. While we may wish that they didn’t believe as such, it is improper to use coercive state institutions to deny them te right to express such religious commitments in non-coercive action.”

            I don’t think we have to conclude that at all. Bear in mind that no Muslim is being forced to donate his/her organs, nor is any Muslim being forced to receive a donated organ. What is actually happening here is that we have a non-Muslim working for a muslim employer, a Islamic non-profit, or some such. That person has a life-threatening illness that can only be cured through an organ donation and wants to have that procedure, but the only available way to finance the operation (because of the manner in which we have structured our health care system over time) is through health insurance provided by his employer. In the absence of such insurance, the procedure can’t be financed and the illness will not be appropriately treated. How on earth is denying coverage for religious reasons not an attempt by the Muslim employer to coerce the non-Muslim employee, non-Muslim doctor, and non-Muslim organ donor to act in accordance with the Muslim employer’s religious beliefs?

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            • How on earth is denying coverage for religious reasons not an attempt by the Muslim employer to coerce the non-Muslim employee, non-Muslim doctor, and non-Muslim organ donor to act in accordance with the Muslim employer’s religious beliefs?

              Its the same way not using tax dollars to build places of worship for poor minority religious groups which would otherwise be unable to build said place of worship and thus conduct religious services does not count as coercion of said poor minority religious group. In fact, it is not as bad as the latter situation. There are possibly actual religious duties that they are effectively unable to do (even if formally so). Yet, it does not count as coercion (at least not the type which is forbidden by Rawls’s liberty principle)

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          • I don’t know what the situation in America is, but at least some Muslims feel that when judgement day comes and their bodies are resurrected, they must be whole and not mutilated in order to enter Heaven.

            So much for the whole 70-virgins-in-heaven-for-suicide-bombers thing.

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          • Yet, my freedom of conscience/religion is clearly violated if I am forced to eat meat, or forced to handle meat etc.

            But are they violated by your paying your employees meal money that they can use to buy meat?

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            • Payment in money is different from payment in kind. Although things can xist on a continuum and it certainly not as clear cut about whether or not providing insurance is more like payment in kind than money, it does seem to be the case that is more like the former than the latter. However, where there is uncertainty, I think we should err on the side of letting the conscientious objection stand even if that allows a bunch of people who really want to get away with providing as little as possible abuse the loophole.

              As I have said before, the rule should just have mandated that employers offer a cash equivalent of the marginal coverage costs. of any particular item they refused to cover. People could then purchace their own birth control if they wanted.*

              *Which, if Nob’s description of the “mandate” is accurate, allsaid mandate amounts to.

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  4. Conor, I think part of the dissonance that you’re feeling comes from the fact that this is a tactical argument, not a moral one.

    All of the non-profit Catholic organizations I have ever dealt with – and all of the for-profit organizations owned by a Catholic – have had contraception covered by their health insurance. I have never heard the subject come up, save for the occasional HR manager making sure that it was covered.

    Because of this, I do not believe that the argument of religious liberty was ever brought up because the morality of contraception in a government healthcare plan was in question; it was just yet another bullet thrown into the chamber in an attempt to stop Obamacare.

    If Rush Limbaugh hadn’t called anyone a slut, the issue would have come and gone almost unnoticed.

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    • This may be the strongest reply to the religious liberty argument. Other liberty may be involved–an organization’s liberty to choose what type of compensation to offer employees (which some will take seriously and others will disdain, of course). But it seems a stretch to call it a religious liberty, something based in a religious duty, if in fact they haven’t been following that supposed duty.

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    • I don’t follow you here, Tod. Contraception is clearly not a moral problem for many Catholics, maybe most, but it is and has been for the Magisterium and lay Catholics faithful to it. Granted, the hierarchy is in a tight spot given the circumstances you raise–they dropped the ball, to say the least–but it has no problem with Obamacare’s mandating insurance coverage in itself. It’s opposition was due to perceived funding of abortion and then the HHS ruling. Indeed, the official church position is that healthcare is a positive right, but of course it doesn’t consider abortion or contraception to be legitimate healthcare. We’re talking about the U.S. bishops here. There mostly a socially conservative bunch, but politically and economically, they’re largely Left-leaning advocates of Big Government. Ask Paul Ryan how they feel about his budget.

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      • Kyle,

        So you live in a liberal, gated community, and your next-door neighbor is a liberal that you get along with just fine, and every Friday night he has a party on his deck that goes to midnight. And you never complain, and often you go over and have a beer with him. You tell your friends at work how aweseom it is to live next door to a this guy. And then that guy moves away and this new guy moves in, and he has bumper stickers on his car that say Obama is from Kenya, and whenever you’re getting you mail he wants to talk to you about what he just learned be listening to Glenn Beck. When election time comes, he puts up signs in his yard supporting right-wing tea party candidates you loathe.

        Every Friday night this guy has parties on his deck, and they go to midnight. You go to the city council and try to get them to force him to stop, because the city shouldn’t allow noisy parties to go past 8:00 at night, and besides – the guy is serving beer! People leaving could get in a wreck and kill themselves, or others! Really, the city has a moral duty to step in and stop these parties!

        Now, those parties may or may not be good or moral things, but you’ll never convince me the reason you’re trying to put a stop to them has anything to do with whether they are or not.

        Does that make more sense?

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        • It makes sense, but I’m not sure it applies. A bishop who knew that a Catholic organization under his authority voluntarily offered coverage of contraceptives and did nothing in response would have little moral ground to stand on, but this doesn’t describe all the bishops. Perhaps not even most. It’s my understanding, for example, that only around 2o or so of the over 200 Catholic colleges in the U.S. offered some form of contraceptive coverage before the HHS mandate.

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  5. Religious Constraint goes about, as it always has since Plato wrote Laws loudly proclaiming itself to be Religious Freedom, forever attempting to turn sins into crimes. Butter wouldn’t melt in their mouths as they lay out their case for Justice, but it’s nothing but the the braying of the Donkey of Morality wearing a mangy old lion skin, constantly betraying itself as such every time it opens its mouth to roar.

    Catholicism must clean out the garbage in its own front yard, giving freedom to its holy orders and to its parishioners ere it attempts to ever again discuss Freedom in a fortnight or a lifetime. Western Civ has endured far too much from the Vatican already. The Irish, the last holdouts, finally gave the Church the bum’s rush but its dead hand is still everywhere felt. Pluralism is the surest sign of freedom in any society and it is constantly under assault by religious entities, intent upon the Propagation of the True Faith at the expense of every person’s freedom of conscience.

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  6. I think this goes beyond requiring employers (Catholic or otherwise) to provide contraception and other reproductive/family services that they have moral objections to. It goes to the ability of employers to be paternalistic and fire employees for out of work practices that they disagree with.

    There are a lot of benefits to at-will employment but I often think we take it too far. In my opinion it should be modified to prohibit lifestyle firing. An employer should not be allowed to fire an employee for any lawful practice engaged in during off-work hours. There do seem to be a lot of pompous “Christian” business people who try to micromanage their employees lives.

    This is where I would promote a liberty that restrains the rights of employers. Hypocritically or not, I would have no problem with an employer who orders employees to cover up tattoos and remove non-traditional piercings during work hours. An employer does have a right to convey an image and culture in the office and during work hours but not while employees are off the clock. There was an article in the New Yorker recently about forsenic linguistics. The article opened with a man who was tried and convicted for killing his wife and two sons. The backstory was that he was having an affair with a cocktail waitress but could not divorce his wife because he worked for a “Christian” organization that would terminate employees who divorced. I say tough luck to the employer with that kind of moral rule.

    You point to the tensions of value pluralism but I don’t think we are very good at the balancing acts as another post in the Democracy symposium said. Most American political fights tend to be between ideologues on one side v. ideoglogues on the other side. The biggest divides between liberals and libertarians seem to be issues of economics (wealth v. fairness) and some “nanny state” health issues.

    IIRC there is a fair bit of peer-reviewed psychological research that shows that Bloomberg’s soda ban could be a good public health measure. I believe the research shows that if people are served smaller portions, they will eat less and not go back for seconds. I don’t think anyone would doubt that obesity is a serious public health issue and an economic one because of rises in diseases like diabetes and heart issues among the severely overweight. Yet any attempt to do something about it results in cries of nanny state and paternalism.

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  7. Without it’s historic primacy of religious freedom, America is just another social contract, and frankly one I didn’t sign. The Constitution is my birthright as a citizen, Barack Obama’s health care program is just another law.

    “What we’re getting from the White House on this conscience issue, it’s not an issue about contraception, it’s an issue that reveals a political philosophy the president is showing that basically treats our constitutional rights as if they were revocable privileges from our government, not inalienable rights from our creator,” said Ryan on NBC’s Meet the Press.

    “We’re seeing this new government activism, paternalistic, arrogant, political philosophy that puts new government-granted rights in the way of our constitutional rights.”

    “That’s really not about contraception,” said Ryan of the mandate. “It’s about violating our first amendment rights to religious freedom and conscience.”

    Bold face mine. The view of rights as coming from our creator, that religious freedom is a pre-political right, is very much at stake here. Religious freedom is of vital national interest, free contraception is not. To infringe on the former for the sake of the latter is tyrannical.

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    • 1. Our Constitutional Rights are revocable privileges.
      2. Who won’t be able to pray as a result of a woman having her birth control paid for by her insurance? Where is this person being kept from church by this policy?

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              • In my society? Cops kick down doors and shoot dogs before realizing that they’ve got a warrant for the house next door. They usually arrest someone in the house for something and then drop the charges after a week.

                How do they enforce laws in your society?

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                    • I see you’re going to continue to dodge the law enforcement question, so I’ll move on.

                      So, if society does not honor a right ever (that is, it violates it universally), in what sense does it exist? Is it existence as intentional inexistence? Are rights Golden Mountains? Do they exist in the Divine Mind, or are the Forms which inhabit our souls (perhaps imperfectly)? Are they limited or unlimited (or a combination of the two)? Contingent or necessary? Are they causally efficacious? If so, how? Are they substance or accident? Did they evolve through natural selection? At what point are we endowed with them? Conception? Birth? When we turn 13 or 18 or 21? Is there some sort of Rights Quickening? What is your ontology of Rights?

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              • Chris,

                It’s necessary to violate my freedom of speech or religion to enforce laws? Come again?

                Or are you talking about taking away my liberty to roam around at will by imprisoning me? The Constitution’s quite clear that it can be done so, but only (legitimately) by respecting other non-revocable rights, called due process rights.

                If your society actually requires treating rights as mere privileges in order to enforce the law, I’d recommend looking for a new one ASAP.

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            • I politely disagree, not because you’re not necessarily correct – I have no idea if humans have something called rights (they’re attached near the tailbone, perhaps) – but because their existence doesn’t matter. What matters is how this concept is interpreted on a day-to-day basis, and how various differences between us (money, skin color, gender, etc) seem to influence that interpretation.

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              • So, in your view, White folks could, indeed, have more rights than people of color, men could have more rights than people of gender, straights have more than gays, and the idea that someone’s rights were “violated” is based on a misunderstanding of thinking that rights are anything more than a social construct?

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                    • I spend less time daydreaming about how laws would be enforced in my utopia than I spend tearing my hair out in response to people arguing that rights are social constructs to be given or removed by the whims of the powerful.

                      I do think that prisons (and our systems we have set up to fill them) are worse than, say, whipping would be. And I say that knowing that whipping carries with it some pretty monstrous baggage from a time when people had the continued violation of their rights written into law, these laws were enforced, and upheld by courts.

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                    • Jaybird, I’m not sure either the day dreaming or the hair tearing does you or anyone else any good. Just telling people that their view (or whatever representation of it you have in your head) makes you tear your hair out is probably counterproductive at best, though.

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                  • Chris,

                    Are you a strict enough legal positivist that you’re sincerely saying the statement “their rights were violated” is wrong? That in fact they had no rights, so there could be no violation of rights?

                    Not arguing, just trying to get clarification on how strict you are with that approach.

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                    • My knowledge of legal theory in general, and legal positivism in particular, is extremely limited. I’ll just say this, and you can decide whether I’m a positivist:

                      I think that if a legitimate authority, in order to enforce legitimate laws, denies a person certain rights that would otherwise obtain for that individual, those rights can be reasonably said to have been removed (even if temporarily), not “violated.” I know “legitimate” is doing a lot of work there, but this is the sort of thing people write books about, so I’m taking big short cuts.

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                    • So if I understand you, for that approach to work you have to treat discriminatory laws as legitimate. Would you say a law that, for example, forbids blacks from serving on juries was legitimate prior to the mid-20th century?

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                    • James,

                      Sorry to jump in, but I think asking about the legitimacy of a law misses the point. The law existed. It oppressed people. It was deemed legal, right up until the point that it wasn’t deemed legal. What use was the right to those prevented from expressing it right up until that interpretation changed?

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                    • for that approach to work you have to treat discriminatory laws as legitimate.

                      The view that rights are constructs doesn’t entail that they’re arbitrary.

                      James, were you absent in the four or eight previous threads where these issues were discussed? There’s been lots of League Ink spilled on this topic. I’m curious if you were a part of those discussion.

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                    • James, theoretically, if the authority that enacts and enforces discriminatory laws is legitimate, then yes, the laws would be legitimate. That doesn’t mean they’re morally right, or that civil disobedience isn’t a valid method of working to change them, but it does say that, again, assuming the authority is legitimate, the laws are legitimate.

                      We could, of course, argue about the legitimacy of a supposedly democratic institution that limits the ability to participate in its composition for the very people it discriminates against in its laws, though.

                      My ultimate position is simply this: rights are pieces in a language game, pieces related to certain principles, ethical and political, that are a part of a specific set of world views, or to keep with the game analogy, a specific set of strategies for playing the game. What counts as a right ultimately gets decided by the course of the game.

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                    • James, I know that is fairly vague, and admits of many interpretations, one of which is absolute relativism. I’m not a relativist. I’m simply an anti-foundationalist about these sorts of things. I don’t think rights come from anywhere outside of our social interactions, because quite frankly, my metaphysics doesn’t admit of any place for them to come from.

                      One could argue that my metaphysics is too loose to form a meaningful conception of rights, and I’d be willing to entertain that position in discussion. By contrast, however, Tom’s is so rigid that anything that he decides is a right becomes immutable, and immune to practical reality (or to reason or discourse), and therefore way, way too prone to abuse. Jaybird’s, as another contrast, is rights via huffing, puffing, and foot stomping (or in his particular case, hair-pulling). This doesn’t get us anything but amusing images of huffing, puffing, and foot stomping.

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                    • ,

                      “for that approach to work you have to treat discriminatory laws as legitimate.”

                      The view that rights are constructs doesn’t entail that they’re arbitrary.

                      I’m not saying anything about arbitrariness, so far as I can make out. But if one doesn’t have a right to X, then a law forbidding X is either legitimate, or if illegitimate then it’s illegitimacy is based on some grounding other than rights. What would that other grounding be?

                      I’m seriously not arguing a particular vision of rights here. I don’t believe in natural rights, but I can’t see how denying, say minorities, of rights can be legitimate. But I’m not sure how it’s illegitimate if in fact they don’t have rights. It’s a quandary I’ve been stuck on for many many years now. So if you have a solution that can help me out of it, that’s what my question is designed to elicit.

                      I don’t think Chris’s statement that discriminatory laws aren’t “morally right” doesn’t really help, because the question just moves to asking what the basis for deciding what is morally right is? If X doesn’t have rights, on what basis is it morally wrong to treat X in a rightless way? And if we say X should have rights, isn’t that ultimately a tip o’ the hat to a natural rights approach?

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      • You mean, for example, this part?

        The view of rights as coming from our creator, that religious freedom is a pre-political right, is very much at stake here. Religious freedom is of vital national interest, free contraception is not. To infringe on the former for the sake of the latter is tyrannical.

        Oh, I think it could be argued against. Every claim, in fact.

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        • What I mean is, if you admit his framing: that freedom of religion is a “pre-political right,” one that comes directly from a higher power, then silly contraception does seem pretty piddly next to it. The position is absurd, of course, but if you’ve accepted it, there is no way to argue against it, short of saying that contraception comes directly from God too at least, which would be even more absurd than Tom’s actual position.

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          • Here’s an example that may make more sense to you:

            Marriage.

            Imagine two guys who go into a Unitarian Church and make their vows. Love, honor, all that crap.

            Is your position:
            A) You guys aren’t married until we say you’re married
            B) I don’t have the competence to say whether you guys are really married
            C) If you guys agree that you’re married, then you guys are married and my opinion has literally nothing to do with whether you’re married or not

            If your answer is “A”, please think of me the next time you eat a Chick-fil-A spicy sandwich and laugh as you think about how I can’t stand to spend money there any more.

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            • Marriage is an interesting case. It has multiple levels: an agreement between two people, an agreement between two people and the state, and if you’re religious, an agreement between two people and God. Society can only deal with one of those levels.

              However, if one person says that he or she is married to another, while the other never agrees to it, is there a marriage? Under your view of rights, apparently there is.

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        • But you are ignorant. Or obtuse. I have no more patience for either. “We hold these truths to be self-evident…”

          Italics mine. Words from the Declaration of Independence, our Founding principles.

          “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. ”

          We’ll settle for de-electing President Obama for the moment.

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              • Tom, I am not the American Left. At least I am by no means representative of it. Obviously, the bulk of the American “left,” in which I would include liberals, progressives, and the Democratic party’s constituency in general, does not reject our Founding principles. One of your many flaws is an inability to admit the possibility that someone sees the situation differently from you, or interprets it differently from you, while holding certain basic principles in common. That makes you pretty much worthless as an interlocutor, but it makes you gold as occasional entertainment.

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                • Assertion upon assertion. Pointless. Heal thyself, doctor.

                  I see the situation just fine. Those who mock “self-evident,” “endowed by their creator,” and the idea of pre-political rights are on the left. free contraception trumps freedom of religion.

                  There is no misunderstanding here. It’s all out on the table.

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                    • What an employee earns with their labour is what the employment contract says they earned with their labour. (or what can susbequently be negotiated by the Union) We are not discussing whether an employee should be provided something that was in the employment contract. We are discussing whether governments ought to dictate the terms of employment contracts even against religious and other conscience based objections.

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                    • ” Those who mock “self-evident,” “endowed by their creator,” and the idea of pre-political rights are on the left.”

                      i dunno. i’m not all that leftishy but the concept of rights being self evident, much less the whole bucket of stew involving a creator, seem pretty easily mocked. great rhetorical framework, utterly silly ideas. (these two things are commonly joined, like peanut butter and jelly)

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                    • Murali,

                      It’s a little more subtle than that. The mandate doesn’t require Catholics to ingest contraceptives (the oral kind… Or any other kind for that matter). It doesn’t infringe on individual religious freedoms. If anything, it seems to me it prevents one person’s individual religious beliefs from impinging on others.

                      Re: employment contracts, Sam was responding to the claim that contraception provision isn’t free since it’s paid for by the same mechanism that ensures prostate exams, teeth cleanings, and triple bypass surgeries.

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                    • @Murali: let’s posit a corporation which wouldn’t hire women because there are no women’s restrooms on the premises. Does this rationale work for you?

                      Because contraception is an exclusively female issue, we face a gender issue. It’s not just contraception the Catholics won’t pay for: it’s tubal ligations and any attempt to restrict the possibility of conception. Men don’t conceive.

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                    • @Stillwater:
                      It’s a little more subtle than that. The mandate doesn’t require Catholics to ingest contraceptives (the oral kind… Or any other kind for that matter). It doesn’t infringe on individual religious freedoms. If anything, it seems to me it prevents one person’s individual religious beliefs from impinging on others

                      I think either Hanley or Jaybird pointed above, that providing insurance which covers contraception is like providing an IOU note for contraception which is like actually handing out the contraception pills in the envelope. The latter two of which are more clearly problematic vis a vis religious liberty. Actual money is different because it is explictly usable for anything, while even insurance is not just used for any health treatment, but only some specified list of health treatments that is deemed to be important or essential. i.e. when I provide insurance, the contents of which I am in charge of selecting, there seems to be a sense in which I implicitly appraise the various covered items as valuable or potentially valuable. i.e. covering a type of treatment expresses endorsement of the value or potential value of that treatment. If I have pre-existing moral, philosophical or religious commitments that contradict such an expressive evaluation, mandating that I express such a valuation means that you mandate that I publicly deny at least some of my religious or philosophical commitments.

                      Which is why, I think a cash compensation for things not covered would have been a better idea. It would have been a satisfactory result for everyone.

                      Re: employment contracts, Sam was responding to the claim that contraception provision isn’t free since it’s paid for by the same mechanism that ensures prostate exams, teeth cleanings, and triple bypass surgeries.

                      Yeah, I kind of missed the initial context. It seemed to me that Sam was arguing that the forward pass was good because it was part of the rules in American football in the same wa shoulder-pads and helmets are. I was trying to point out that just because a forward pass is allowable and is a part of the rules of American Football, doesn’t mean that allowing forward passes is a good idea, and that the argument was not taking place on the level of whether the referee was right to allow that forward pass, but whether we should be playing rugby instead of american football.


                      let’s posit a corporation which wouldn’t hire women because there are no women’s restrooms on the premises. Does this rationale work for you?

                      I’m not entirely sure about the connection to my argument.

                      Because contraception is an exclusively female issue, we face a gender issue. It’s not just contraception the Catholics won’t pay for: it’s tubal ligations and any attempt to restrict the possibility of conception. Men don’t conceive

                      Yes, but restricting the possibility of conception can take place on either side of the equation. e.g. Men can have vasectomies. The hypocrisy or ill motives of particular catholic organisations should be irrelevant just as it is in eneral a bad idea to legislate whether to restrict a freedom or privelege based on the motives of those who are advocating for that freedom or privilege. Laws should be based on more formal claims.*

                      *I know that this atually requires much more argument, but I don’t have the space here. I might try to write a post on this some time soon. It sufficies to say that in most situations, the hypocrisy and intent of the involved parties is irrelevant to whether or not their actions should be legal even though it affects whether or not such actions are morally good. Part of this is because law is a blunt instrument and ill suited to the assesment of motives. The other more significant reason is based on the idea that the basic structure is a matter of setting up the correct framework within which people can pursue their own conceptions of the good. But the notion of setting up a framework is like setting up rules which set boundaries. While it is possible to tailor the rules to situations, it is not possible to tailor the rules to the motives. It is also not the place of the state to judge the motives of the participants because the framework is supposed to be a value neutral framework and judgment of intent etc isnecessarily a value judgment in a way that a mere rule need not be.

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              • My ears were burning…
                Employers are required to provide insurance coverage as part of the compensation for labor.
                The employee may choose to use part of their compensation to purchase contraception.
                They may also choose to use their compensation to purchase alcohol, and pork.

                Yes, this does sound like the death knell of liberty.

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          • Tom,

            If those truths were so “self-evident” why didn’t the government our Founding Fathers create look anything at all like the platitudes they were offering in the Declaration? At the very outset the American government was “destructive of these ends” and yet oddly, it didn’t dissolve itself, even though it was lead by people who claimed to sincerely believe in what they themselves were describing.

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            • Sam, I’m having trouble gauging people’s level of sincerity lately. If the rejoinder to every mention of the Founding principles is to be slavery, racism and sexism, let’s not bother to play out the script. We’ve both seen that movie before.

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              • So you don’t think it is at all pertinent that a nation founded on the principal that all men are created equal survived slavery, Jim Crow, the disenfranchisement of women, Japanese internment camps, and the Americanization of Native Americans when discussing how much of a threat the contraception mandate is to these same founding principals? REALLY?!?!

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              • The problem, Tom, is that when slavery was an issue, that was a Big Issue for the Founders and they swept it under the rug, leaving the 3/5 Compromise intact. Fuck the Founders. Their cowardice in the face of slavery ought to stink in every honest man’s nostrils. It did then, and it does now.

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                • Blaise, the best minds discuss ideas. Smaller minds discuss people.

                  Each of us has feet of clay. To dismiss our Founding ideals because of the weakness of the men who held them is the gravest of errors.

                  People will always disappoint you. This is the one thing they never fail at.
                  This cynicism will be our final undoing, Blaise. Your act is of the world-weary anti-sentimentalist, but that’s not you.

                  The Founding ideals are why, after 87 years of betraying those principles—dating from the Declaration of Independence 1776, not the Constitution of 1787—Mr. Lincoln said in 1863

                  Four score and seven years ago our fathers brought forth upon this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

                  Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that this nation might live. It is altogether fitting and proper that we should do this.

                  But in a larger sense, we cannot dedicate – we cannot consecrate – we cannot hallow – this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us, the living, rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.

                  It is rather for us to be here dedicated to the great task remaining before us, that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion; that we here highly resolve that these dead shall not have died in vain; that this nation, under God, shall have a new birth of freedom, and that this government of the people, by the people, and for the people shall not perish from this earth.

                  Absent these ideals, Blaise, none of us owes allegiance to a lousy stinking government of men, not laws. The government of which Mr. Lincoln spoke will have perished from this earth.

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                  • If you don’t mind me saying so, Tom, where these conversations fall flat (or circular) isn’t that people don’t by and large believe that.

                    It’s that you seem genuinely incapable of understanding that other people honestly see things differently than you. There are no different interpretations for you, there are either people that agree with you, of sophists – people that know you are true but are lying out of… something.

                    For all your telling Conor or Ethan that they want to destroy this country (or this site) you might try instead asking them why they start from the same principles and climb to a different vantage point… you might give them the benefit of believing that they believe in the same core ideals that you do, but see a different way to achieve them, for reasons that are entirely honest and valid.

                    Or, what the fish, you can just call them sophists and say “good day, sir!” Your choice.

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                  • In future, Tom, lay off all that hagiography about the Founders. They were men like you and me and no women. How dare you quote Abraham Lincoln on this occasion. Right there in the Declaration from which Lincoln quotes, all men are created equal yet the 3/5 Compromise made sure they weren’t equal. Conceived and dedicated in Liberty, yes. Not enacted into law that way, though.

                    And it took a long, filthy, bloody war to make a difference in that equation. Those men who died would have lived to a ripe old age if your goddamn Founders had the guts and the conscience to enact into law what they’d sent to King George.

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                    • Tod, if the Gettysburg Address can be shouted down, I got no shot.

                      What makes you think I don’t understand what’s going on here? I’m shining a light on it.

                      If you don’t mind me saying so, Tom, where these conversations fall flat (or circular) isn’t that people don’t by and large believe that.

                      “People” do, Tod.

                      Tom,

                      I don’t know about anybody else, but my response is going to be slavery and racism and sexism, because they make clear that the founders didn’t even remotely believe that “all men are created equal.” The notion that they did is positively ludicrous. If you don’t want to have that conversation because it undermines the lofty place you have in your heart for the founders, that’s your business, but that hardly changes their history.

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                    • “If you don’t mind me saying so, Tom, where these conversations fall flat (or circular) isn’t that people don’t by and large believe that.”

                      ““People” do, Tod.”

                      Oooo, I have a feeling that we’ll have another debate about what “that” refers to!

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                    • Tom, your response to a post on the contraception mandate was that because he didn’t agree with you Conner didn’t believe in the Declaration of Independence. There are a whole lot of levers doing a whole lot of heavy lifting that they really shouldn’t in order to get from that point A to that point B.

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                    • No you don’t have a shot. Either you take the Founders as they were, feet of clay and the self-evident evil of slavery and all, or you don’t. There’s enough self-evident propositions running around here, much of which have to to with that profoundly liberal assertion that All Men Are Created Equal, which always seems to annoy some people around here.

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                    • Tod, we could discuss this or we can keep doing…this. I find the latter unacceptable as a worthwhile use of my time.

                      Do many people today reject the conception of rights as expressed in the Declaration of Independence? That turnip truck has moved many miles down that road.

                      Tellya the truth, Tod, we could use a moderator much more than another litigant. At 5-to-one or so, this fight is fair enough. If you’re going to moderate, moderate.

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              • Tom,

                I don’t know about anybody else, but my response is going to be slavery and racism and sexism, because they make clear that the founders didn’t even remotely believe that “all men are created equal.” The notion that they did is positively ludicrous. If you don’t want to have that conversation because it undermines the lofty place you have in your heart for the founders, that’s your business, but that hardly changes their history.

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                • I don’t necessarily think we need to go this far, though I wouldn’t argue too strenuously against it.

                  Really, Tom’s claims stretch the bounds of reasonability when viewed in proper context.

                  His argument seems to be that Obama’s contraception mandate, the gross violation of the 1st Amendment that it is, represents a irreversible departure from the founding principals of our country that either is in and of itself or, falling short of that, is the harbinger of the downfall of our nation and our society.

                  The counter-argument being put forward is that, even if we are willing to concede that the mandate is a gross violation of the 1st Amendment, it is far from the most egregious departure from our founding principals, all of which our nation has survived. Examples include but are not limited to slavery, for which the departure from a principal so core to our founding that it was entrenched in the opening line of our dear Declaration of Independence was not only immediately present, but was actually codified shortly thereafter with the Three-Fifths Compromise.

                  In essence, and I know he will object strenuously to me saying this and it even feels a little absurd to say it but it seems to need saying, Tom is arguing that the contraception mandate is a greater threat to our nation than slavery was. Which would be laughable if he didn’t actually believe it so strenuously. If that isn’t epistemological, I don’t know what is.

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                  • I think Tom basically represents what was always a strain in American politics because of our Calvinist-Puritan heritage.

                    The early British colonialists essentially came in two types: Puritans who felt that the high-church Anglicans were too squishy and wanted a theocratic utopia. And early/proto Capitalist adventurers who wanted to get very rich. Somehow these two groups managed to create people like Anne Hutchinson, William Penn, and Roger Smith who can almost kind of be the origins of the American left/liberals.

                    I think you basically see the two original groups still largely animate the American right. They see freedom being about imposing their religious dourness on others and ultra-Capitalism without restraint. They also tend to seem rather drawn to apocalyptic terms and how everything is a grave assault on life as they know it and their freedoms. I see them as basically seeing politics as a zero-sum game and freedom gained by others must mean freedom lost by them. Higher wages for the working class mean less money for the rich, the rights of women to get contraception mean less rights for their theocracy, etc.

                    You can read almost any book on American history and here the same language and tone being used by right-wingers through out our history that Tom does. This is nothing new. The most seminal work on this is probably:

                    http://en.wikipedia.org/wiki/The_Paranoid_Style_in_American_Politics

                    Sample quote:

                    “American politics has often been an arena for angry minds. In recent years, we have seen angry minds at work, mainly among extreme right-wingers, who have now demonstrated, in the Goldwater movement, how much political leverage can be got out of the animosities and passions of a small minority. But, behind this, I believe, there is a style of mind that is far from new, and that is not necessarily right-wing. I call it the paranoid style, simply because no other word adequately evokes the sense of heated exaggeration, suspiciousness, and conspiratorial fantasy that I have in mind.[1]”

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                    • Actually, Mr. Deal, the Puritans abolished ecclesiastical [church-based] courts as too papist.

                      As for our Calvinist heritage, as a not a Protestant let alone a Calvinist, discovering its great influence on America’s Founding came to me as quite a surprise. Had no dog in that fight.

                      And the biggest laugh is how the Calvinists shed Calvinism and became our modern-day northeastern liberals.

                      Neo-Puritans. True story.

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    • At the risk of being something off a buzz kill, how does this Constitution-based line of argumentation take into account the fact that, as noted liberal and anti-Catholic Antonin Scalia explained in Employment Div v. Smith, 494 U.S. 872 (1990) , the Supreme Court has rather consistently held from 1879 to the present that free Exercise of religion does not entitle a conscientious objector to an exemption from a generally applicable statute, citing, among other instances, the duty to pay taxes or assessments used to fund activities the objector has a religious exemption to? (Sorry about the lack of a link, I’m on my IPad).

      I find curious the notion that over 130 years of cases don’t inform the discussion, especially when they just about all cut the same way.

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