One of the most interesting, and even astonishing, aspects of our current political thought and practice is the rapidity and thoroughness of contemporary liberals’ abandonment of their tradition’s former grounding in a belief in individual rights.
That flight from rights can (and here, if I do say so myself, has) been seen clearly with regard to race, where their former belief in a right to colorblind equal treatment has been scrapped in favor of racial preferences. It can also be seen regarding speech, where liberals these days routinely support restrictions on speech (campus “hate speech” restrictions and “free speech zones,” workplace speech restrictions in the name of avoiding “hostile work environments,” campaign finance rules to restrict certain publications near elections, etc.). With religion, too, contemporary liberal judges are more often to be found opposing than supporting litigants claiming that their right to the free exercise of religion has been violated.
In that last regard, the Supreme Court’s recent decision in Holt v. Hobbs, which agreed with a Muslim prisoner in Arkansas that a regulation preventing him from wearing even a short, trimmed beard violated his religious freedom, can be seen as an exception that proves the rule. Although the ruling was unanimous, Justice Ruth Bader Ginsburgs’ concurrence, joined by Justice Sotomayor, was revealingly grudging. Here’s it is in its entirety (minus citations):
Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that understanding, I join the Court’s opinion.
Here’s is James Taranto’s incisive put-down in the Wall Street Journal of that cramped view of rights:
Ginsburg’s logic has a certain plausibility, especially if you don’t value religious freedom very highly. Whereas some Hobby Lobby employees possibly would like to avail themselves of a benefit to which they would otherwise be entitled by law at their employer’s expense, Holt’s beard doesn’t impose any tangible burden on anybody. If you look at it that way, Holt had a stronger claim than Hobby Lobby.
But that isn’t the way the law looks at it. Neither RFRA nor Rilupa [the Religious Freedom Restoration Act; the Religious Land Use and Institutionalized Persons Act] contains language limiting its applicability to cases in which “accommodating petitioner’s religious belief . . . would not detrimentally affect others.”
It is of course not at all unusual for one person’s exercise of his or her rights (or what liberals formerly regarded as rights) to “detrimentally affect” others. Recall, for example, former Harvard president Larry Summers’ unfortunate (for him) reference to some well known test results during his talk at MIT several years ago. “Nancy Hopkins, a biologist at Massachusetts Institute of Technology, walked out on Summers’ talk,” the Boston Globe reported, “saying later that if she hadn’t left, ”I would’ve either blacked out or thrown up.'”
Colorblind racial equality, religious rights, robust free speech — everyone interested in such “rights,” beware of nervous nellie liberals worrying that your exercising them “detrimentally affects” others.
