Jacob Sullum

According to The New York Times, a case the Supreme Court heard on Tuesday, involving a challenge to Obamacare's requirement that businesses pay for their employees' contraceptives, "pits religious liberty against women's rights." Similarly, last month's controversy over an Arizona bill aimed at protecting business owners from being forced to treat homosexual and heterosexual couples alike was widely perceived as a conflict between religious liberty and gay rights.

Both of these debates are more accurately described as clashes between real rights and fake rights. To put it more politely, they pit negative liberty, which requires freedom from external restraint, against positive liberty, which imposes demands on other people's resources. Under the latter vision, giving freedom to one person requires taking it away from another.

In the Supreme Court case, two family-owned businesses, the craft store chain Hobby Lobby and Conestoga Wood Specialties, a Pennsylvania cabinet manufacturer, argue that forcing them to provide health insurance that covers birth control methods they view as tantamount to abortion violates the Religious Freedom Restoration Act (RFRA). 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 and decided any burden was acceptable as long as it was imposed by a neutral, generally applicable statute. The decision triggered outrage across the political spectrum, and three years later, a nearly unanimous Congress responded by passing RFRA.

Arizona has its own version of RFRA. S.B. 1062, the bill that Gov. Jan Brewer vetoed last month in response to nationwide criticism, would have clarified that it protects businesses (one of the issues raised by the Hobby Lobby case) and that it applies to legal actions brought by private citizens. Its chief sponsor said he was reacting to a discrimination complaint against a New Mexico photographer who declined to take pictures of a gay wedding; there have been similar cases involving a Colorado bakery and a Washington florist.

Arizona currently recognizes no such cause of action, so S.B. 1062 would have had no immediate effect on interactions between businesses and gay couples. And if Arizona's legislature one day decided to ban discrimination based on sexual orientation, the law could still be upheld as "the least restrictive means of furthering (a) compelling governmental interest."


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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