Should Libertarians Support Religious Exceptions to Generally Applicable Laws?

Steven Mazie thinks
it’s weird that libertarians like me are defending freedom of
religion in
Sebelius v. Hobby Lobby. I think it’s weird that he
thinks it’s weird. In a
Big Think post headlined “Godless Libertarians Find
Their Religion,” Mazie says “it’s a delicious treat to watch
libertarians rise to the defense of Protestant evangelicals.” How
so? “The libertarians are allergic to religion,” he says, “yet
speak out in ringing endorsement of the right of the fundamentalist
Christian employers to exercise a line-item veto over the
contraceptives their employees may access under their health
plans.” 

Are libertarians “allergic to religion”? Many of them are, but
many are not. Some of them are even fundamentalist Christians.
There is no inherent contradiction between libertarianism or
classical liberalism and religion, as long as religion is not
forcibly imposed on people by the state. In any case, since when
must you be religious to defend freedom of religion, which includes
the freedom not to be religious at all?

The American Civil Liberties Union, which in my view has taken
the
wrong position in the Hobby Lobby case, has a Program on
Freedom of Religion and Belief. That organization, which probably
has more than its fair share of agnostics, atheists, and secular
humanists, nevertheless has been known to
defend the religious liberty of people whose beliefs it does
not endorse, just as it defends the free-speech rights of people
whose views its members abhor. That is the sort of thing civil
libertarians are supposed to do. If religious conservatives and
secular libertarians are a “novel conglomeration” of “strange
bedfellows” in Sebelius v. Hobby Lobby, as
Mazie says, how would he describe the left-liberals and neo-Nazis
who were allied in
National Socialist Party v. Skokie?

In the comment thread under his post, Mazie concedes that “many
secular libertarians coherently (and rightly) support religious
free exercise rights,” and the “same holds true for secular
non-libertarians.” He says “the incoherence comes when libertarians
leap to defend individuals and corporations requesting an exemption
from otherwise generally applicable laws.” Here is why Mazie claims
that position is incoherent:

For libertarians, the contraceptive mandate is wrong, full stop.
No one should be required to pay for birth control for their
employees, they say. Having a religious belief should not give you
a stronger claim to exemption than anyone else. Yet Hobby Lobby is
basing its claim to exemption squarely on its religious objection
to abortifacients.

Before I get to the question of whether libertarians should
support such religious exemptions, it’s important to understand
that the general principle has support across the political
spectrum. The law under which Hobby Lobby is challenging
Obamacare’s contraceptive mandate, the Religious Freedom
Restoration Act, passed Congress almost unanimously. Under that
law, “government may substantially burden a person’s exercise of
religion” only if it is “the least restrictive means” of serving a
“compelling governmental interest.” That was the test the Supreme
Court applied under the First Amendment until 1990, when it
reversed course in
Employment Division v. Smith, holding that any burden
is acceptable as long as it is imposed by a neutral, generally
applicable statute.

Mazie seems to favor that approach, but the ACLU does not. The
ACLU of Oregon represented Al
Smith and Galen Black, the plaintiffs in Employment
Division v. Smith. Smith and Black were members of the
Native American Church who were denied unemployment benefits after
they were fired for using peyote. The ACLU argued that the state’s
denial of benefits violated Smith and Black’s First Amendment
rights because peyote was a sacrament central to their religion. It
made a similar argument under RFRA in
Gonzales v. Uniao do Vegetal, the 2006 case in which the
Court unanimously ruled that the statute protected a religious
sect’s sacramental use of ayahuasca, a psychedelic tea that
contains dimethyltryptamine, an otherwise forbidden drug. The
ACLU’s
brief in that case was joined by Agudath Israel of America, the
Baptist Joint Committee, the Christian Legal Society, the General
Assembly of the Presbyterian Church, the Unification Church, the
Minaret of Freedom Institute, and the First Church of Christ,
Scientist. More strange bedfellows!

Although the ACLU does not think the birth control rule violates
RFRA, it clearly is not opposed to the general idea of a religious
“exemption from otherwise generally applicable laws.” But should
libertarians be wary of such a policy, since it involves giving
people special legal privileges based on their religious beliefs
and invites the government to
scrutinize those beliefs in a rather unseemly way? While those
concerns are legitimate, my general feeling is that it’s better to
have an unjust law with exceptions than an unjust law that applies
to everyone with equal ferocity. Religious and medical exceptions
to drug prohibition, for example, make some people freer without
making anyone else less free (although one could argue that such
exceptions help perpetuate prohibition by making it more
tolerable). I firmly believe that people should not need a
government-approved reason to consume psychoactive substances. But
it is hard for me to see how busting members of the Native American
Church or O Centro Espirita Beneficiente Uniao do Vegetal advances
the cause of liberty.

If all laws were legitimate and fair, the Supreme Court’s
position in Employment Division v. Smith (which I
take to be Mazie’s position as well) would make sense. To use the
classic example (offered by the Court itself in the 1879 polygamy
decision
Reynolds v. United States), people should not be exempt
from laws against murder simply because their religion demands
human sacrifice. More generally, religion should not override laws
that protect individual rights, which from a libertarian
perspective is the main (or only) justification for government. So
if people really did have a right
to free birth control, allowing some employers to violate that
right because of their religious beliefs could hardly be considered
just. Since there is no such right, it seems to me that letting
some people escape this unjustified mandate is better than forcing
everyone to comply. I can see why people might be offended by such
special treatment, but to me that is an opportunity for a broader
discussion: If it seems reasonable to contemplate a religious
exception to a generally applicable law, that is a pretty good
reason to question the law itself.