When Hobby Lobby Won, We All Did
Religious believers and all Americans who care about economic and personal freedom should breathe a little easier in the wake of the Supreme Court’s 5-4 decision June 30th in favor of Hobby Lobby and another employer, who cited the Religious Freedom Restoration Act as exempting them from being forced by Obamacare to fund abortion-inducing drugs as part of employee health benefits. We would have faced grim times indeed the court had ruled otherwise, ignoring even the plain provisions of a law specifically intended to protect religious believers from the general, societal trend by which the federal government seeks to micromanage the lives of every American to accord with the social preferences of national elites.
The decision rendered by the Supreme Court this week could not have come on a case with graver consequences for the shape of American politics — and hence for American life, which grows more politicized by the year. The America about which Alexis de Tocqueville wrote allowed citizens wide liberties, and limited government’s power over an individual’s life. Most of the laws and officials any American ever brushed up against were those of his local town — whose officials he elected directly, and then of those of his state. Unless he joined the army, your average American rarely encountered the federal government at all.
Such a weak, decentralized government was possible because Americans of his era controlled themselves according to firmly held, inherited moral codes, and willingly submitted themselves to the influence and authority of non-state institutions, ranging from the family and the church to the force of public opinion and the verdict of “polite society” in their local communities. These institutions of “civil society,” a mighty force in Tocqueville’s day, have weakened for many reasons — including the growth of government, which competes with them for influence and uses its legal power to hobble their freedom of action. An ugly synergy results, as the state points to social pathologies that arise when individuals act without moral compass, and the government steps forward to take those citizens firmly by the hand and give them the guidance they once might have gotten from churches and families.
Let’s look at a concrete example: A teenage girl in 1848 whose boyfriend wanted to sleep with her would have had many reasons to refuse. One would be the moral code her parents had taught her and her church had reinforced. Another would be fear of the social disgrace that unwed motherhood brought with it, and the prospect of raising a child without a husband’s support. If she had become pregnant and tried to raise the child, what assistance she got would have come from her family — who would certainly have pressured her not to repeat her tragic mistake, which they would call plainly a sin. A girl of the same age today would have fewer breaks on the power of instinct, knowing that contraception might well prevent a pregnancy — and that if one resulted, she could abort it. Even if she chose to have the child and raise it herself, a large array of government programs would provide for her and the child, and for any subsequent children she conceived. In fact, many teenage girls now become pregnant on purpose, aware that they will thereby gain the wherewithal to move out of their family homes and start life on their own — as “independent” adults.
What the state has accomplished by offering these benefits — beyond the worthy goal of supporting a child in need — is to remove the practical consequences that support the moral codes of parents and churches, to render a young woman’s family much less relevant in her sexual decisions, and thus to multiply the number of teenage girls who will become pregnant. The sheer numbers of pregnant teens make it impossible for “society” to keep up its disapproval, and so the social taboo is worn away. Thus the actions of the federal government drain civil society at every level of influence and power, cutting away every level of human relationship that once stood between the naked individual and the state. Young women lose the moral courage required to resist sexual exploitation, and live in intergenerational patterns of poverty and dependence. And millions of Americans are born and raised with only the federal government for a daddy. A significant fraction of these people will later know the government as their main source of support, or even as their jailor.
In many other matters we have learned to turn to the state as nursemaid, as daddy, as benefactor and friend. Increasingly it is not the local or even the state government to whom we turn, but the U.S. government. Countless interventions of federal courts imposing constitutional requirements on local governments, and numberless uses of naked federal power such as the HHS mandate that spurred the Hobby Lobby case, have turned our once vital local governments and semi-sovereign states into branch offices of the federal government. A country whose laws once mirrored the wild diversity of the citizens who lived in it is now organized like a franchise restaurant chain.
Why does this matter? What is lost when federal power trumps not just state and local but personal independence? Many things, including social diversity, freedom of conscience, freedom of association, and other goods essential to a thriving democracy. The importance of subsidiarity — of leaving power wherever possible with civil society, and then local government — becomes clear when we look at a few historical instances in which that decentralism served as a crucial backstop in the defense of fundamental human rights. The best example in America can be seen in the resistance that local and state governments outside the South put up against the infamous Fugitive Slave Act (1850). In many locales, especially in New England, sheriffs and other law enforcement personnel simply refused to use their legal authority to capture, imprison, and transport back to slavery human beings who had escaped their condition of bondage. Had the United States been governed as a rigidly centralized state on the model of Tsarist Russia or republican France, local officials would have lacked the independence to take stands of conscience.
When, in October 1943, the Gestapo came to round up the 7,500 Jews of Copenhagen, the Danish police did not help them to smash down the doors. The churches read letters of protest to their congregations. Neighbors helped families to flee to villages on the Baltic coast, where local people gave them shelter in churches, basements, and holiday houses and local fishermen loaded up their boats and landed them safely in neutral Sweden….
Both the Danish king and the Danish government decided that their best hope of maintaining Denmark’s sovereignty lay in cooperating but not collaborating with the German occupiers…. From very early on in this ambiguous relationship, the Danes, from the king on down, made it clear that harming the Jews would bring cooperation to an end and force the Germans to occupy the country altogether. The king famously told his prime minister, in private, that if the Germans forced the Danish Jews to wear a yellow star, then he would wear one too…. [T]he institutions of Danish society all refused to go along [with the persecution of Jews]. And without their cooperation, a Final Solution in Denmark became impossible.
In the case of Denmark, as in that of antebellum America, the actions of subsidiary institutions — local governments and units of civil society — proved absolutely critical in resisting the evil intentions of governments that tried to enforce unjust laws. In a rigidly centralized state, where all power descends from the top instead of bubbling up from the roots, the safety and liberty of any citizen depends on the goodwill of a single person or a small cabal. In a decentralized system, thousands of people have the wherewithal to resist and obstruct the progress of evil.
Many of the grossest human rights abuses of the twentieth century would have proven impossible to carry out had the power in the respective countries not been relentlessly gathered into the hands of centralized governments decades before. When a vicious ideologue gained power in Germany in 1933, the smooth apparatus of a rigidly centralized state fell into his hands, and Hitler as chancellor was able with the stroke of a pen to impose his toxic views on the whole of German academia, media, and society. Likewise, local leaders in Ukraine had no independence of action to counter the famine that Stalin’s policies imposed on that battered region.
In our own country, legal abortion had only been approved by a few states in 1973, when the Supreme Court removed from the states the right to legislate on this matter. This made the abortion debate in the United States more polarizing and bitter than it was in almost any other Western country and saddled the country with what are still the most lax abortion laws in the world. These laws are the same in Mississippi as they are in California, despite the wishes of voters in either state. Much of the rage that social conservatives came to feel toward the federal government can be traced to this and similar legislative decisions that arrogated the power over critical legal and moral issues to a tiny, appointed elite of judges who are unaccountable to voters.
American democracy was not designed to operate on such a model, and the result has been the collapse of bipartisan cooperation in our Congress, as the two parties increasingly seem to represent starkly different peoples with irreconcilable views. In a rigidly centralized system, local elections — traditionally the laboratories of democracy — begin to seem ever less meaningful, while national votes come to resemble plebiscites that choose between opposing ideologies. Political rivals gradually are polarized into enemies, and the once robust structures of government turn brittle. The more power the state has over its people, the higher the stakes of winning. The more centralized that power is, the uglier the contests will become, because so much — far too much — is at stake. Each side in our elections becomes increasingly desperate to keep such excessive power out of the hands of its enemies, and each side that does win is prone to the corruption that unchecked power brings.
Jason Scott Jones and John Zmirak are co-authors of the upcoming book, The Race to Save Our Century (Crossroad, 2014), from which this essay has been adapted.