One way to be confident that you have won a political or legal debate is to exclude from your mind contrary views that rely on ways of reasoning that have become unfamiliar because they have become unfashionable.
This occurs more often than you may realize. Take, for example, two sets of issues involving religious liberty. The first concerns the question of whether state and local government should provide vouchers to parents who send their children to private religious schools. Those who oppose such a policy often repeat talking points similar to those recently offered by the Rev. Barry Lynn, executive director of Americans United for the Separation of Church and State (AU): “Parents are free to send their children to private religious schools if they wish, but . . . .taxpayers should not be forced to pay for it.”
I suppose that’s one way to think about it. But consider another. Recall that in Early America there were several states that had established churches, for there was no 14th Amendment (which passed in 1868) through which 20th century courts would eventually incorporate the Federal Constitution’s disestablishment clause and apply it to the states.
Although states with established churches also had strong provisions for religious liberty, all citizens were forced to support the official faith financially, through tax assessments. So you were free to believe and practice any faith you wished (as long as it did not violate peace and safety), though you still had to pay taxes to support the state’s established church.
When I explain this political arrangement to students in my class, Law and Religion in the United States, they express amazement combined with relief that we moderns seem so much more enlightened than our mildly theocratic ancestors. I follow up by asking, “Are you sure there is nothing like this going on today?” After some discussion, they remain confident that the Early American experience has no contemporary parallel.
But then I raise this question, “How many of you attended a private Christian high school before coming to Baylor?” Anywhere from 25 to 35 percent of the students raise their hands. I then ask, “Do your parents pay property taxes?” While they are nodding yes, I ask them what those taxes are used to support. They answer, “the public schools.” So, I say, “Let me get this straight. Under our Constitution, your parents are free to exercise their religious liberty by sending you to a private Christian school, though they still have to pay their taxes to support the state’s established school system. Are you still sure there is nothing today that is like the Early American experience?”
Just as the advocates of America’s established churches argued that dissenters were free to believe and practice as they wished, even though they were forced to pay the government a church-tax from which the dissenters would receive no financial benefit, AU’s Lynn offers today’s dissenters the same cold comfort: “Parents are free to send their children to private religious schools if they wish, but. . . .taxpayers should not be forced to pay for it.”
The second example concerns Burwell v. Hobby Lobby (2014). It is the Supreme Court case that involved two closely held family-run companies, Hobby Lobby and Conestoga Wood Specialties, that objected to a regulation (the HHS mandate), issued by the Secretary of Health Human Services (HHS) under powers given to her by the 2010 Affordable Care Act (ACA). The mandate required for-profit companies to include in their employee health insurance plans birth control methods that the owners believe may at times function as abortifacients, that is, they kill human embryos soon after conception.
The Hobby Lobby owners, members of the Green Family, are Evangelical Protestants, while the Hahns, owners of Conestoga, are Mennonite Christians. For this reason, the companies argued that because the HHS regulation requires that they directly pay for, and thus cooperate with, the use of a product that violates what their respective moral theologies teach them about the sanctity of human life, the regulation is in violation of the 1993 Religious Freedom Restoration Act (RFRA).
In her dissenting opinion, Justice Ruth Bader Ginsburg, responds: “Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to be substantial . . . .[D]ecisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers.” In essence, she is arguing that merely paying for and providing a menu of birth control options to their employees as part of their benefit packages does not make Hobby Lobby or Conestoga accomplices in activities they believe are immoral.
On the other hand, Justice Ginsburg attributes the HHS mandate to the law-making authority of Congress, even though the mandate was not in the text of the ACA passed by Congress and signed by the president. The mandate, as I have already noted, was a regulation that the HHS issued under powers given it under the ACA. But in that case the mandate was the result of a decision of a non-Congressional body that need not have been made.
So, if one cannot legitimately attribute culpability to the Greens or the Hahns, simply because the final decision to use the birth control is made by the employee and not the Greens or the Hahns, then one cannot legitimately attribute the law-making authority of Congress to the HHS which issued the mandate, for the final decision as to the mandate’s content and scope was made by the HHS and not Congress.
The lesson here, in the words of G.K. Chesterton, is this: “Fallacies do not cease to be fallacies because they become fashions.