An Apology and an Argument about the Argument

A reader with the sartorial name of AndyHat writes:

Also, please watch the ad hominem: “You talk exactly like a PC Lefty seeking the unearned moral high ground, reveling in the strength of an unrestricted state.” I resent that; you have no idea what my actual views are, and I don’t believe that they’re particularly germane to the discussion. I’m simply trying to present counter-arguments to your views from a variety of other viewpoints in order to better understand the arguments you’re making.

Sir, the justice of your comment cuts me to the quick, and I admit the error and seek to make amends. Having once been a Libertarian myself, I have great respect for the breed. The main flaw of the philosophy is that it is inflexible to the point of folly, but the main virtue is that it is inflexible in its purity. To hear a Libertarian blithely espousing statements in direct opposition to the foundational principles of Libertarianism is unheard-of.

To answer your question: all your arguments presented so far are presented on the grounds that the federal government has a valid interest in compelling institutions including charities, schools, hospitals and businesses, to provide services unrelated to any public interest.

Providing sterilization, abortifacients, and contraceptives is neither a health issue nor a public safety issue. It neither repels enemies nor stops fraud. It is not necessary for the peace and dignity of the commonwealth. It is not even an administrative convenience needed for the orderly execution of the laws, such a commanding all motor vehicles to display a license number, nor a public work, such as a library or highway which benefits the citizens. It is not even the erection of a public monument or festivity which arguably might be justified by such imponderables as public morale and the honor due veterans.

It is not a health issue. If the state and local government had an interest in promoting the public health, such as by commanding certain sanitation features and practices to halt the spread of disease, this could be accomplished by enforcing the laws prohibiting fornication and sodomy.

It is not a regulation, akin to establishing standardized weights and measures, or a uniform commercial code governing negotiable instruments, needed to regulate commerce between the several states or with the Indian nations.

I agree that no right is an absolute: every right, if it conflicts with another, must be balanced by some just standard. The Supreme Court has on many occasions, however, drawn a distinction between (1) justifying an imposition on ordinary rights upon a showing of an arguable state interest and (2) justifying an imposition on Constitutional rights, which are much more jealously guarded, and can only be upheld if the state interest is compelling, AND IF not other less obtrusive means exists for serving the state interest.

Add to this, the face that the federal government has no powers aside from the enumerated powers granted under the constitution. This regulation, promulgated by an unelected bureaucrat,  does not arguably fall under any of them.

That is on the one hand. On the other is the First Amendment ‘free exercise’ clause, which strictly forbids the federal government to compel members of a church to that which violates their doctrinal precepts.

We are not talking about some mere formality, such as that saying Catholic women must cover their heads in the chapel. It is a Christian doctrine older than any other regime, law, or institution forbidding the use of abortion and contraception, and this includes abortifacient drugs. The oldest surviving written record of this doctrine is the Didache of the Twelve Apostles, circa 100 AD; all Christian denominations up until the 1930’s adhered to it.

So this is the general shape of the Constitutional Law argument. Now, to argue against this position, you have to allege, first, that some state interest exists; second, that it is a compelling state interest; third, that there is no Constitutional guarantee of free exercise of religion; or in the alternate that this guarantee does not cover this case; four, that it is lawful for secular magistrates to command Catholic institutions such as charities and hospitals and schools to violate Christian doctrine; and five, that it is lawful for the Federal government to do so in this case, despite the violation of the First and the Tenth Amendment.

You have not done so. All you have done is proffer “unclean hand” arguments alleging that for one reason or another the Catholics are insufficiently pure to be allowed to defend themselves: such as by saying that since some Catholics violate the Christian prohibition on contraception, all Catholic institutions are barred from raising an objection to being forced to fund sterilization procedures or funding the distribution of abortifacients.

The logical error here as I said before: if my fellow Catholic is a Pharisee or a sinner, it does not give the federal government the right to decree that the Catechism of the Catholic Church no longer applies to govern Catholic institutions such as schools and hospitals.

You make augments like this: the Catholic Church has an all-male celibate hierarchy; no all male-celibate hierarchy has the right to promulgate divine commandments concerning chastity, abortifacients, or sterilization to its followers; therefore the Catholic Church has no right to promulgate divine commandments concerning chastity, abortifacients, or sterilization to Catholic followers.

Those are not legal, or even rational, arguments. They are PC ad hominem bullshit: an attempt to seize the moral high ground based on victim-group politics. It is an emotional appeal to a set of false-to-facts associations: identifying sterilization and contraception with “womyn’s issues”, identifying males as being of one group with a uniform set of interests and females with another, identifying sterilization and contraception as therefore issues where men are not allowed to make rules or have opinions, blah, blah, blah. It is poisonous nonsense.

If you wish to answer those who make such arguments to you, as a Libertarian, the correct answer is the back of your hand. Your rights are inalienable. That means, your rights do not become aliened from you the moment you join a Church whose members are not perfectly “pure” according to politically correct ever-shifting golaposts of purity.