Yesterday, during Day Two of Neil Gorsuch’s Supreme Court confirmation hearing, Sen. Chris Coons, D-Del., questioned Gorsuch on his Tenth Circuit concurring opinion in the Hobby Lobby case. The case was later adopted by the Supreme Court, which took the same side as Gorsuch had.
“There is an enduring tension or contest in our history between individual freedom and religious free exercise,” Coons began. Hopefully, this was a mistake, and he meant to say “establishment of religion” rather than “religious free exercise,” the latter being itself an individual freedom. Or maybe that really is what he meant. Either way, it’s a rather telling statement that seems to demonstrate where Democrats are trying to move the entire conversation about “freedom.”
In Hobby Lobby, the courts decided that the owners of the company Hobby Lobby, who asserted a sincerely held religious belief that certain abortifacient forms of contraception were wrong, could not be compelled to furnish them under Obamacare as a condition of being allowed to offer any health insurance to their employees. Obamacare’s accompanying regulations — not the law itself, it should be noted — heavily fine employers who offer health plans that do not include such contraceptives.
Coons’ questioning was most noteworthy for his typical but wrong-headed argument that the religious beliefs of the owners of a corporation like Hobby Lobby cannot be the basis of religious freedom claims. This was, as Gorsuch pointed out, an opinion that only two of the nine Supreme Court justices agreed with. That came as a bit of a factual slapdown to the left-wing mythology surrounding the case.
But what’s probably even more noteworthy and fundamental is that throughout his questioning, Coons referred to this government requirement as a “liberty interest” or a “freedom” for its beneficiaries. He also heavily implied this conceptual confusion in other passages of his questioning, such as this comment:
“Part of what I think made Hobby Lobby striking to so many was that the choices of 13,000 individuals (the company’s employees) about their method of family planning were overridden by the sincerely held religious beliefs of a successful family.”
Gorsuch didn’t point it out, but there is no “freedom” at stake here, except for the religious freedom of people who do business. No one tried to ban those forms of contraception — to make anyone “unfree” to purchase or use them. At issue in the case was simply whether government can compel a third party to provide something against their religious beliefs. And further, the case was really about whether, assuming a government interest in providing such things free of charge, government could not do it in some other way that doesn’t interfere with the actual freedom of religious exercise.
Coons is not the first Democratic politician to confound a “liberty interest” with compulsion of a third party to provide something. This has become quite popular, in fact. But legal compulsion, even where it is necessary or just, is not “freedom.” It is nonsensical to equate the two, unless you want to argue that Harvard deprived you of a freedom to attend school there when it didn’t accept you.
This idea is alien to freedom in general, let alone any peculiarly American conception of freedom. Even when governments establish access to certain amenities, they do not do so under the pretext of freedom. They do it in order to uphold their vision of the public welfare, at times (and arguably necessarily) at the expense of others’ freedom. There may be laws requiring others to do something for you, but there’s no “freedom” to have someone else do something for you.
Even where action on behalf of others is required by law, by duty, by common sense, or even by a sense of humanity, we don’t call it “freedom.” To say that a doctor who happens upon and treats an accident victim does so because the victim has the “freedom” to receive treatment would be nonsensical. We might say the doctor has a binding obligation, under medical ethics or even perhaps under the law, but we don’t call it “freedom.”
By necessity, and for the common good, government compels certain actions. It compels you to pay your taxes. It compels you to appear in court. It compels the convicted to serve their sentences. It even compels young men to register for the draft.
But no sane person calls those things “freedom.” Government compulsion is not the same thing as freedom. It’s something we accept in certain cases for the common good.
