As TAC’s “house liberal,” I’ve felt an obligation to write something about my own approach to liberalism, but I haven’t found a good hook for it until the last few days. I’ll expostulate on my own framework before introducing the “hook” just because I’m difficult like that.
I’ve honed my own understanding of liberalism through an ongoing argument with Damon Linker. Linker’s liberalism is what I would call a “thin” liberalism – that is to say, a liberalism that declines to take a position on questions of “the good” but merely tries to come up with a political and intellectual structure within which individuals can pursue their own visions of “the good” without unduly burdening other individuals on their own quests. Linker calls this the “liberal bargain” – all sides give up the possibility of “winning” a war to control the culture, and thereby also avoid decisively “losing” said war to the opposing side.
The problem with this approach is that, as Linker’s own book demonstrates, it sends you inevitably in the illiberal direction of policing the “legitimate” bounds of political debate and questioning whether individuals and movements are truly committed to upholding this bargain. Moreover, the state as it actually exists is just too big to ever uphold a bargain that truly avoids touching these kinds of questions. Where the state provides for the education of its citizens, it must determine the content of that education, including moral content – by which I don’t mean, primarily, hot-button moral questions like whether and at what age kids should be taught about contraception but much more fundamental matters. Indeed, teaching children that they have to find their own road to what constitutes “the good” is, in itself, teaching a kind of liberalism, and subversive of some traditional approaches to moral instruction. Where the state provides health care for its citizens, it must determine what care is warranted and when, and who are acceptable providers, all of which raises the prospect of a host of potential conflicts with different moral perspectives which I probably don’t need to run down in detail.
For those obsessives who want a thorough rundown of my debate with Linker, start here and here and work backward. Where I wound up at the end of the debate is defending something I might characterize as Aristotelian liberalism – Aristotelian because it is fundamentally grounded in an exposition of the liberal virtues, and therefore in some vision of the “good life” rather than starting from a set of axiomatic “self-evident” truths about inalienable “rights.” But it’s an Aristotelian liberalism leavened with a Socratic skepticism about the wisdom of its own conclusions. As I described it to Linker, it’s a liberalism that is both more confident (willing to defend its substantive moral commitments as “good” and not merely as “necessary”) and more humble (willing to concede the possibility that those commitments are not, in fact, a complete picture of “the good,” and therefore to respect illiberal virtues and institutions that embody those virtues).
What brings this all to mind for me is Rod Dreher’s series of posts on the recent HHS decision on Catholic hospitals and schools (see here and here) and the recent Supreme Court unanimous ruling in Hosanna-Tabor vs. EEOC.
To recap the issues: Catholic hospitals and schools don’t provide coverage for contraception, or sterilization for their employees. Under the ACA, there are new Federal standards for what constitute “comprehensive” coverage, which include coverage of a variety of family planning services. The Catholic church sought a waiver to allow them to continue to carve out such coverage; HHS came up with a compromise that was basically a denial of the waiver.
The official Catholic reaction has been that the decision threatens the integrity, and therefore the existence, of an extensive network of Catholic institutions. The Catholic church is not willing to pay for services, or coverage of services, that it considers profoundly wrong. It will, to one extent or another, tolerate that wrong, but it won’t participate in it. So, from its perspective, HHS is basically saying that the church can either violate its conscience or get out of the business of healing the sick.
But another perspective would be to say that HHS is saying that the church can either violate its conscience or get out of the business of providing health insurance to its employees. Inasmuch as a Catholic hospital provides healthcare services, it isn’t running afoul of the regulation. Rather, it’s running into trouble because it’s providing health insurance as an employee benefit. And why, one might ask, should the Catholic church – or any employer – be in that particular business?
Consider if the ACA had created a single-payer healthcare system for the United States. Undoubtedly, such a system, financed by taxes, would have provided some kind of contraceptive coverage. That’s not because contraceptive coverage is an “inalienable right” but because it is cost-effective and because there is a hegemonic (but certainly not universal) view in the United States today that contraception is not only morally neutral, but that for individuals to develop mature and responsible sexual autonomy is a positive good (the scope of debate mostly revolving around what defines “mature and responsible” and what is the best developmental path to such a destination). That is to say: the conclusion in favor of contraceptive coverage reflects a substantive majority judgment on what constitutes the good (and what doesn’t) and not just a technical judgment on what is or isn’t a violation or this or that right.
Well and good. So, under a single-payer healthcare system, believing Catholics would be paying taxes to fund contraception, just like believing pacifists would be paying taxes to fund war, and so forth. And that’s just the way things work in a democracy: you pay for lots of things you oppose.
But that’s not what the ACA did. Rather than provide health insurance directly to the citizenry, the ACA built on the existing infrastructure of employer-provided health insurance that dominates the American system. In effect, it coerced private actors – employers, individuals – to participate in a national system, rather than simply taking money from those private actors and creating that national system de novo.
If the Catholic church’s goal is to keep its hands clean, so that it is not directly providing coverage for contraceptives and other services it considers morally wrong, it should approach the issue in that spirit. The endgame, then, would be moving employees away from employer-provided insurance and towards individual purchases on the health-care exchanges, or an arrangement that gave employees the option of cash compensation to purchase such coverage in lieu of insurance provided by the employer, with the latter still having a carve-out excluding contraceptive coverage.
But I doubt this is the only goal. The Catholic church is not just a worship-service-providing institution. Neither is it a worship-service-providing institution that happens to have a bunch of ancillary businesses taking advantage of the tax and other advantages a church affords. The reason the Catholic church sponsors hospitals is not merely to heal the sick, but to do so in such a way that witnesses to the truth of their doctrine – that witnesses to God’s presence in the world. The church has every reason to seek maximal autonomy in running such institutions, as well as maximal scope in the kinds of services these institutions provide.
The Catholic church, in other words, represents if not a total approach to society and to “the good” certainly a very “thick” approach, touching most important aspects of life, and as such is necessarily a competitor with a hegemonic state. So the question at issue is not really freedom of religion – it’s actually pretty easy to reconcile the individual conscience with the HHS rules, provided sufficient flexibility in getting to new institutional arrangements that don’t transgress that conscience – but how large a scope the hegemonic state wants to give to such competition.
The Hosanna-Tabor ruling suggests a scope that is narrow but deep. Recall what was at issue in the case. The plaintiff had been terminated for refusing to settle a disability-related discrimination suit privately. The Court ruled, basically, that a church has pretty near absolute autonomy to determine its own personnel with respect to functions actually related to worship and the promulgation of doctrine. Since the plaintiff taught divinity-related classes (even though this was not her primary responsibility), she could be forced to comply with a code of conduct that mandated private dispute resolution under church auspices, and could be dismissed with impunity for violating that code even if she claimed she was being discriminated against because of her disability.
I would suggest that this scope of autonomy is too limited – but that the impulse to keep it so limited may in part be driven by the recognition of how deep it is. We don’t actually want to extend this kind of immunity broadly to everyone involved in a religiously-affiliated institution, because we believe in the universality of the civil and criminal law. But it’s worth trying to think more creatively about how to preserve a wider scope of autonomy even if it is relatively more limited. And I don’t see any particular reason it should be limited to religious institutions.
It is, in the long run, in the interest of a hegemonic liberalism to have robust critics of its values that are engaged in the general culture, and not walled off in intellectual and social ghettos. But, in the long run, its also in the interest of those critics to be subjected to the discipline of accountability to an external authority. We want autonomous institutions to be able to run things their way, even if that means requiring employees to make substantive commitments of one sort or another. And we want those employees to be able to effectively blow the whistle when those institutions use that autonomy as a cover for corruption and abuse.