Matt Evans: Hobby Lobby Proves It, People Don't Understand Rights
Watching the reactions of people to this week’s Hobby Lobby supreme court ruling has refocused my attention on something we already knew: People Do Not Understand Rights.
Head on over to Wikipedia and search for “negative liberties”. Read that and then come back.
Here’s the short version: you have the right to not have other people hurt you. That is a negative liberty: to be free from external harm done to you unjustifiably.
Negative liberties are things you have on an Island, all by yourself. On an Island, you have free speech — there is no one to tell you what you cannot say. You have property — there is no one to take your things from you. You have the right to keep and bear arms on an island — there is nobody there to take any weapons from you that you find or invent.
Another nice thing about negative liberties is that they play well together. If you move onto my island, I can keep my right of free speech, and you have have the right to free speech also. I can say what I want; you can say what you want.
Positive rights are something entirely different. A positive “right” for you is a claim on a 3rd party that they must fulfill on your behalf. The misguided folks who talk about the right of healthcare are suggesting a positive right. For them to give you healthcare, they must conscript someone else to provide it. The well meaning folks who talk about the right to an education are implying, even though they aren’t saying, that teachers will be forced to teach you, and that somebody will be forced to pay them.
A positive right for you means the violation of somebody else’s negative right.
Still with me?
If someone says you have the right to birth control, they might possibly be talking about a negative liberty. Let me explain. I agree that women of sound mind have the right to buy birth control. Nobody should stop them. I am sure somewhere there is some curmudgeon who would like to ban the sale of birth control, but that’s not the issue and it was never a part of this discussion. The negative right to “buy, have, and use birth control” would be infringed if there was a law against letting women buy or acquire it.
But there isn’t.
(Technically speaking, one could argue that the negative liberty of “freedom to have birth control” is being partially infringed in the US because of the requirement that birth control drugs can only be sold with a doctors permission, and that doctors and pharmacists are only allowed to operate with the blessings and approval of the US government. Duly noted; let’s move on.)
The objections to the Hobby Lobby decision seem to fall into a few categories, but each of them is advocating for a positive right, which means that they are also advocating for the infringement of someone else’s negative right. Remember — negative rights can play well together, but when people are asking for positive rights, they’re asking for someone else to suffer on their behalf.
The first category of objector is using the following common, coded language. They are talking about “access to birth control”. They are not talking about a negative liberty. They are not talking about selling birth control over the counter, or making it easier for women to buy birth control.
They are talking about a positive liberty. They are talking about giving women birth control and forcing a 3rd party pay for it. Women can “access” birth control by going to a doctor, getting a prescription, and buying it at a drug store. Nothing about the Hobby Lobby decision has any bearing on how women “access” birth control.
The issue in the Hobby Lobby case was that Hobby Lobby was being legally compelled to pay for birth control and then hand that birth control over to female employees (via a 3rd party intermediary, the insurance company)
That is a positive right or positive liberty for the female employees. And like all positive rights, it infringes on the negative liberties of an innocent party. By forcing Hobby Lobby to provide birth control, Hobby Lobby’s negative liberty to retain its property (its money) is being infringed. That’s nothing new — taxes are a common and flagrant infringement of the liberty to keep our stuff.
At issue, then, in the Hobby Lobby case, was the violation of another of Hobby Lobby’s negative liberties. Specifically, the freedom from being forced to act against one’s own moral (or religious) convictions.
Suppose that you are a pacifist. You are morally opposed to participating in violence. It is a violation of your moral convictions to force you to go to war. In fact, during most major military conflicts, there have been groups of Americans who have been “conscientious objectors”, and who have been allowed to not participate in the war effort.
Notice that in the Hobby Lobby case, like the conscientious objector case, we are considering compelling someone to act; we are considering forcing them to act against their own moral convictions. The conscientious objector issue has been settled and pacifists are not drafted during wartime. Now, the Hobby Lobby issue has been settled, and companies with religiously held objections to certain birth control drugs which they (rightly or wrongly) believe to be abortificants will not be forced to pay for and provide them.
This brings us to the second category: people who don’t understand religious exemptions.
A meme I saw on Facebook this week read as follows:
“So stoked about the Hobby Lobby ruling today. Officially going to incorporate myself so I can get a religious exemption for my student loans debt they violate my deeply held religious conviction that all debts are supposed to be forgiven every seven years, as per the book of Deuteronomy.”
This is funny, and shows a surprising knowledge of Jewish history.
However, it misses the point entirely.
People are often unable or unwilling to sincerely consider religious objections, and to understand them.
Exemptions for religious convictions and wartime conscientious objectors are similar in the “reach” of their convictions or objections: they do not compel someone else to do something. Exemptions for religious convictions or conscientious objectors do not allow the objector to violate the negative liberties of another party. They do not allow the abstainer to actively harm others.
Refusing to pay a debt — indeed, violating any contract you voluntarily engaged in — is violating the negative rights of someone else. In the specific case here, insisting that your religious beliefs mean that your debts should be forgiven is equivalent to saying “in my religion, I get to steal from others”. In a functional pluralistic society, your religion must never allow you to violate someone else’s negative liberties.
When different bills or policies to allow those with religious objections to opt-out of some government mandate come up, people invariably invent wild objections. For instance: “This law will allow Muslims to beat their wives, because that is allowed in their religion”. This strawman shares the same problem as the debt forgiveness joke — it is one person asking to be allowed to violate the negative liberties of someone else, in the name of religion.
That’s not what conscientious objectors want during a war, and that’s not what Hobby Lobby won in the Supreme Court.
The third thing I’ve seen this week is any one of a number of variations that say, in effect, “My Boss Shouldn’t Control My Body”
This is ridiculous.
First and foremost, most bosses tell you where to be and when to be there. Often, its “at your desk” and “by 9am”. Where is the outrage about requiring women to show up to work on time? Isn’t that evil bosses controlling their bodies?
Of course not. And the reason is because the employee/employer relationship is voluntary, with agreed upon terms.
In a typical employment relationship, the boss says what tasks she wants accomplished, and often when and how they are to be completed. The employee agrees to submit some control of herself (specifically, what she’ll be doing and where she’ll be doing it — her job, at her workplace) to the wishes of her boss. The employee does this because she likes getting paid.
See the relationship here? It’s the bosses money; the boss spends it how the boss likes, on the things the boss wants to spend the money on.
If the employee and the boss don’t see eye to eye on what should be done, how it should be done, etc, then the boss and the employee can renegotiate, or they can part ways.
The employee is not really being “controlled” by the boss, because the employee can walk away at any time. The employee is agreeing to do what the boss says because the arrangement is mutually beneficial.
So long as the employee is free to walk away from the employer, it’s difficult to contend that the boss is really controlling the body of the employee.
Let’s use a ridiculous scenario to illustrate the point.
Suppose in some hypothetical world, Hugh Heffner had become president of the US, and had passed a law saying that all employers must provide free copies of Hustler magazine to all their employees.
Sue, the owner of Puritan Grocery Stores, objects strongly to this new law. Sue is against pornography. The idea that some law would force her to spend her own money on pornography, and then force her to provide that pornography to her employees, is absolutely offensive to Sue. It violates her deeply held religious convictions. Sue can tolerate the idea that others buy and enjoy porn, but Sue doesn’t want anything to do with it. Sue understands that there are things in this world she doesn’t like, or thinks are morally wrong, or even evil. But Sue doesn’t want to support those things with her own money.
Jeff is an employee of Puritan Grocery Stores. He’s not actually a Puritan himself. In fact, he loves Porn. He’s very excited about the new law, because he is looking forward to a regular supply of free porn (free for him. Sue has to pay for it, of course).
Now, if Sue objects to this law, what might Jeff say?
“Sue wants to control my mind”
“Sue wants to control what I read”
“Sue wants to control my time away from work”
If Jeff enjoys reading Hustler in his bedroom, Jeff might even say, “Keep Sue out of my bedroom!”
Sue may or may not want to control Jeff’s mind or reading habits, but the plain fact of the matter is, Sue has no ability to do so. If Sue doesn’t buy Hustlers for Jeff, Jeff can still buy them himself and read them in his bedroom. Sue can’t do anything about it.
Jeff’s objections are completely ridiculous. His negative liberty to read is not being infringed by anyone.
However, what Jeff is really after, is the positive right of having Sue buy his porn for him.
If Jeff were to run around saying “I deserve free porn!”, few would take him seriously. If Jeff were to run around saying, “My boss should be forced to buy me porn”, few would take him seriously.
But if he runs around saying that his right to read is being infringed, or that he wants his boss out of his bedroom, a few people might be fooled into listening to him.
Don’t be fooled.
Here in America, there are women who want birth control given to them, and they want you and I to pay for it, whether we want to buy it or not. These women aren’t being denied birth control. Nobody is in their bedroom. Nobody is controlling their body. Nobody is stopping them from buying whatever birth control they want — with their own money.
The fourth objection I’ve seen is especially interesting. It says, roughly, “Now Corporations Have More Rights than Women”
I don’t have an opinion on if corporations currently have more rights than individuals. But I do know that the Hobby Lobby decision didn’t take any rights away from women. Women don’t have the positive right to have other people pay for their birth control. They didn’t have it before, and they don’t now.
Companies, on the other hand, do have the negative right to keep their property, and to only spend their money on the things they want to spend it on. That right was being infringed before, and its still being infringed now.
In the specific case of Hobby Lobby and 4 birth control drugs, it’s being infringed just a little bit less.
In summary, if you understand that negative rights are real rights — the kind we all have and should keep — and positive rights are not, and that every positive right requires someone else’s negative right to be infringed, then you’ll see the Hobby Lobby decision for what it is — a minor reduction in the ongoing violation of rights, and only for a narrow circumstance. You’ll also see the objections against the Hobby Lobby decision for what they are — a major amount of whining to make other people pay for things, and a fundamental misunderstanding of human freedom.