This week, the Little Sisters of the Poor were granted a reprieve by the US Supreme Court from the Federal Government’s Obamacare health care mandates.

To summarize the case in two sentences: the Little Sisters didn’t like Obamacare’s mandates that employers pay for “abortion-related medical coverage.” This meant the Little Sisters had to either pay for abortion services through their employee-provided health care plan, or they had to pay substantial fines.

On Monday, the Supreme Court told the lower courts to figure it out without violating the Little Sister’s religious views.

This is being hailed by many observers as a victory for religious freedom. And yet, court rulings and statutes protecting religious freedom were not at all necessary to preserve their religious freedom. The Sisters would have been far better protected by a respect for ordinary property rights.

After all, in a legislative environment that does not force people to pay for things they find immoral — based on any religious or secular ideology — the Little Sisters would have never been put in this position in the first place.

If the state respected the Little Sister’s right to contract freely with others, and to dispose of their lawfully-obtained property as they wished, then there is no question as to whether or not they should be forced to pay for someone else’s abortions. The answer is obviously that the Little Sisters should simply be left alone. Anyone who doesn’t agree with the Little Sisters’ health care plan for employees, need not work for the Little Sisters.

All Human Rights Are Based on Property Rights

The central importance of property rights remains when we look at the problem more generally. In Man, Economy, and State, Murray Rothbard looked at the problem in the context of freedom of speech:

Take, for example, the “human right” of free speech. Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, then, there is no such thing as a separate “right to free speech”; there is only a man’s property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.

In the case of the Little Sisters, they have generally been able to freely exercise their religion not because of a special religious freedom, but because they have been allowed to exercise their property rights.

Specifically, the Little Sisters have been conducting business on their own property or in places where they were given permission by other property owners to be. Their employees worked for the Little Sisters of their own free will, and the Little Sisters (more or less) freely contracted with employees. No one was forcing anyone to work for them. Nor did the Little Sisters force themselves on anyone else. That is, they were free to do and say things — in accordance with their religious beliefs — any place where they were freely invited to do so. On the other hand, they weren’t free to practice their religion in places where the owners did not want them, such as inside a mosque or on the property of anyone who didn’t want the Little Sisters there. Obviously, a mosque’s refusal to host the Little Sisters would not be “censorship” or a violation of “freedom of religion.”

And who can find anything wrong with this situation? This is simply a situation in which people freely exercise their property rights.

This can be applied to freedom of the press, as well. No one has the right to say whatever he wants wherever he wants. For example, a person has never had a “right” to write whatever he wants in a newspaper. People can only say things in newspapers in accordance with what the newspapers’ owners have allowed.

Thus, all we need for free speech to occur, is to allow owners of newspapers — or owners of websites, bookstores, and soapboxes, for that matter — to exercise their property rights.

Once the state gets involved, though, the picture changes dramatically. Once states begin telling newspapers what they can and cannot print, the state is restricting their property rights.

Similarly, the Little Sisters’ freedom of religion is only restricted when the state begins ordering the Little Sisters about in regards to how they contract with employees or spend their money. Yes, freedom of religion is being restricted, but only because the property rights of the Little Sisters were being violated first.

Thus, it’s not surprising that Rothbard equated all rights with property rights when he observed:

The concept of “rights” only makes sense as property rights. For not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard.

Property Is More Concrete than Conscience

Rothbard’s claim here that property rights are more concrete is also of special importance. After all, if we start basing rights on religion rather than property, then we immediately find ourselves in a situation where the state must have the power to define what religion is. And even worse, the state then is put in the position of deciding the motivations of a person or an organization and whether or not the motivations are religious in nature.

For example, who is to say whether or not the Little Sisters were motivated by religious concerns or monetary concerns? If the state decides they were motivated by monetary concerns, then, those who rely on freedom of religion for protection would have no further defense against the state’s edicts. Only if government judges read the minds of the Little Sisters and decide their motivations were religious, are the sisters to be allowed their basic property rights.

Mind you, there is no question at all as to whether or not the health care benefits in question are paid for by the Little Sisters. The property rights at work are concrete and easy to identify. They consist of concrete employees, and concrete wages in the form of health insurance.

Far more murky, however, are the motivations of a group of people and the exact nature of their religion.

In the case of the Little Sisters of course, the sisters benefit from the fact they belong to a large, well-known religion with well-established views on the matter. But what if we’re instead dealing with an individual or group of individuals that adhere to a more obscure religion which has less easily-identifiable views? In that case, we’re left with judges and attorneys arguing over what a specific person’s religious beliefs are, and whether or not they are applicable to a specific situation. This theological debate is obviously far beyond the competence of the state.

But this is the hazy and amorphous road we begin to walk down once we abandon property rights arguments in favor of “freedom of religion.”

Moreover, note how the freedom of religion argument only protects the freedom of people who are part of a religious institution.

An ordinary Catholic, for example, who runs a small family business would still be forced to violate his own religious beliefs by Obamacare because judges are likely to conclude that his motivations are mostly based on profit rather than some religious mission. Whether or not the small businessman views his business as a religious endeavor is irrelevant according to the state in most cases.

Are You Sufficiently Religious to Be Allowed Freedom?

As an additional illustration of the pitfalls behind assigning state judges as arbiters of private conscience and motivation, we might look at the problem of conscientious objection. Conscription has always been one of the most heavy-handed ways of violating property rights, but states have been politically forced (in many cases) to allow exceptions based on ideological and religious reasons.

Rather than allow individuals basic property rights which would naturally invalidate conscription overall, the government falls back on the amorphous and arbitrary task of determining whether someone’s pacifist convictions are sufficiently strong to warrant conscientious objection. At this point, the objector is in the position of making theological arguments or claims about one’s lifestyle and daily habits to prove he or she is a pacifist. The state then also analyzes how long these convictions have been held. Did you decide to become a pacifist only six months before you were drafted? Too bad. The state may decide — based on completely arbitrary standards — that six months is not long enough to “prove” your ideological conviction or your religion.

The irrationality and arbitrariness of this process boggles the mind, and yet this is what is required when governments decide matters based on matters of conscience, religion, and internal motivation.

This case is just another example, of course, of how property rights also protect the rights of the conscientious objector without any need for any special rights of conscience or religion. Any Quaker, for example, who was simply allowed to exercise ownership over himself would be allowed to fully exercise his religious convictions to not take up arms.

Thus, in both cases, the religious-freedom argument fails to protect most people. The only exceptions are those who have filled out the correct government paperwork and met the state’s arbitrary standards for proving one’s internal beliefs to the satisfaction of the courts. Do you have a long enough paper trail for your affiliation with pacifistic religions? Do you have the right documentation showing a religious mission for your business?

This is a pretty weak reed on which to hang essential human rights, but that’s where we end up when we ignore property rights.


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