WASHINGTON, D.C. - One of the most influential works of political philosophy to come out of the Cold War era was an essay called “Two Concepts of Liberty” by Isaiah Berlin, the British historian of ideas.
Berlin argued that there were two very distinct concepts of liberty competing in the history of political philosophy. Negative liberty describes the freedom not to be interfered with. It is the common and common sense understanding of freedom. Liberal societies (small-l) try to arrange government to give individuals the largest sphere of liberty concerning important human values – speech, worship, property and so forth -- compatible with the maximum liberty of others.
Positive liberty is more complicated and not so common-sensical. It is the freedom to do something. It describes the capacity to exercise liberty, not just the absence of interference. What good is the freedom to own property, for example, if you have no money? Liberty without capacity, in the positive conception, is meaningless.
Negative liberty is the first political value among many in the political philosophies in the English liberal tradition and in the liberal democracies they have shaped. In theocratic societies and in the European political philosophies of the counter-Enlightenment, negative liberty is trivial; their ultimate political values vary by ideology – from salvation to sharia to equality – and liberty means having the conditions and capacity for the right values to flourish. Positive liberty always entails a concept of the good life; negative liberty assumes there are many good lives.
What gave Berlin’s ideas such sway was not the brilliance and novelty of the distinction between these two concepts of liberty. It was the way Berlin showed how political philosophies in history that emphasized positive liberty became the ideologies of totalitarians.
That is because a society based on the idea that the free person must by empowered to do will always be more coercive than a society based on being left alone. Because what, exactly, is it most important to do? Who decides the ultimate value positive liberty serves? That is not to be decided by individuals in their spheres of negative liberty; it is decided by ideology, God or by might.
Liberal freedom, to simplify, was meaningless and repressive for Karl Marx because real freedom entailed the capacity to do what your talents dictate and to be equal to other citizens not just under the law, but materially.
Liberal freedom, for another example, had no value to the German philosophers Herder and Fichte because people could not be truly free unless they were part of their organic race, their volk.
Sebelius v. Hobby Lobby Stores, Inc.
Two different concepts of religious liberty are facing off now in the Supreme Court in the Sebelius v. Hobby Lobby Stores, Inc., the most watched case on the docket this year. They reflect the distinction between negative and positive liberty. The government is defending a negative liberty. The plaintiffs are asking for an extension of their positive liberty; while there is nothing malevolent or menacing in that, it is important to recognize its importance.
Here are the basics: The Green family is religious and tries to run the corporation they control, Hobby Lobby Inc., in accordance with their Christian principles. The Affordable Care Act requires that employee health insurance plans offer women birth control, including forms of birth control (IUDs and morning after pills) that the Greens consider to be the moral (or religious) equivalent of abortion.
The Greens say that the ACA forces them to “facilitate” a practice they object to and thus places a “substantial burden” on their free exercise of religion. So they are asking the Supreme Court to give them what is called an “accommodation” in the law, an exemption from the ACA based on their rights under the First Amendment and the Religious Freedom Restoration Act.
The essential argument of the Green family is not that their freedom to worship as they wish is being interfered with or constrained. They are arguing, rather, that a new law affecting their corporation could connect them (or their money) to behavior by their employees that they consider sinful. They want the secular world of commerce to be altered so there are no conflicts with their religious values.
For that to happen, the Supreme Court has to approve two important conditions: that Hobby Lobby Inc. be exempted from a federal law and that it be permitted to discriminate against female employees. The free exercise of their religion, the Greens argue, should trump those other legal values.
The case is notorious because it could hamper the implementation of the Affordable Care Act if the government loses. It is important because beyond that it will influence future legal arguments about religious freedom, arguments that are increasingly being used to oppose things like the ACA, gay marriage and who can predict what else. And it is interesting because it may be part of a distinct new round in the long argument about religious freedom in America coming at a time of great political polarization.
Consider what the Greens are asking for:
- That their rights of free exercise trump their employees rights to be treated equally under the ACA, in particular, female employees’ rights of equal coverage and access;
- To accept that their corporation has, essentially, a right of free exercise of religion just like a person;
- To be exempted from a law that applies to all businesses and individuals;
- To accept their claim that even though they as individuals are not being forced to use birth control or even paying for it, their free exercise is burdened because they could be connected to this practice they object to through a long causal chain: the Greens control a corporation, the corporation buys a health plan, a health plan offers birth control, an employee or their kin uses birth control.
This sort of claim is very different from, say, a Native-American tribe that asks for an exemption from drug laws so they can use peyote in a ritual ceremony. And it is different from that made by a Jewish family that does not want their children to have to say Christian prayers in a public school.
The courts have not made a lot of religious accommodations over the years. And they have never given one to a for-profit corporation; typically, they have given them to explicitly religious organizations such as a Catholic hospital or a Christian charity.
Indeed, prior courts have found said that when people voluntarily go into commercial activity, they must obey the law of the land, even if they believe they are following religious principles. A unanimous Court put the point this way in 1982: “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
If Hobby Lobby were to win, it is easy to envision a future where religious freedom claims about public and commercial activities multiply. Could a business owned by a Christian Scientist be exempted from providing health insurance altogether? Could landlords refuse to rent to gay people or unmarried men and women? Could a Jewish clinic refuse to serve gentiles? Could Quakers be exempt from taxation as government funds facilitate wars and death penalties?
Most importantly, we can’t even imagine the controversies and culture clashes in America in 2034, much less 2114.
This is precisely why so many groups, including advocates for women’s rights, gay rights and civil liberties are terrified the Court will rule for Hobby Lobby. The arguments and logic in the case mirror efforts in various states, for example, to allow business to refuse service to gay weddings without fear of discrimination claims.
If the Court legitimizes the new kind of religious freedom exemption in the commercial world, we can expect a new legal front to open up in the culture wars.
The Greens are not asking to be left alone, to have their negative liberty protected; they are asking for a number of things, most importantly that the rights of others be trumped. That, in essence, is asking for the government’s complicity in imposing their religious beliefs on others.
And it is based on their religious worldview that religion has special constitutional protection. If these were merely moral or secular beliefs, would they have the same standing? Does that make sense?
There is nothing sinister in the positive liberty demands in the Hobby Lobby case. But they are very different from the concept of negative liberty that guides the Constitution and the liberal tradition.
Dick Meyer is Chief Washington Correspondent for Scripps News. An experienced writer, reporter and author, Meyer was executive producer for the BBC's news services in America, NPR's executive editor and editorial director of CBSNews.com. Meyer also wrote a book on American culture and politics, "Why We Hate Us: American Discontent in the New Millennium" (Crown Publishing/Random House, August 2008).
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