Sally Kohn Doesn’t Understand How Laws Work
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Sally Kohn Doesn’t Understand How Laws Work

The debate over religious freedom has officially broken the collective liberal mind. Rather than just admitting that many same-sex marriage supporters wish to use the power of government to force people of faith to violate their consciences, at least one skeptic of religious freedom has invented a new legal theory on the matter.

In a column for TPM, liberal media personality Sally Kohn asserted that it makes no sense to say the government is forcing people of faith to violate their consciences, because government can’t force you to do anything:

You may have heard that the government is forcing businesses not to discriminate. It isn’t. If you chose to run a business, you have to follow the laws. If you don’t, that’s a choice—and you choose to suffer the consequences.

Kohn, who has a law degree from NYU, carried her theory even further, stating that members of the police force aren’t really using force to enforce the law unless they put a gun to your head:

This issue of government force is a funny one. You could also argue that the government is forcing you to drive below the speed limit or wear a seatbelt in your car. But it’s not. There isn’t a police officer holding a gun to your head literally forcing you to buckle up. In fact, you are 100 percent free to speed and not wear your seatbelt—and simply deal with the consequences if you’re pulled over. Is the threat of the fine for breaking the law amount to “forcing” you to follow the law? No.

Eric Garner, who was choked by Staten Island police and later died at the scene of his arrest for selling untaxed cigarettes, might disagree with Kohn’s description of what does and doesn’t constitute force. Unfortunately, Kohn fails to see the linguistic hints embedded in the words we use to describe how government compels legal compliance.

We use the phrase “force of law” for a reason: laws that are not backed by force aren’t laws; they’re suggestions. We use the phrase “law enforcement” for a reason. We use the phrase “police force” for a reason. If a law is not followed, it is not unusual for the government to dispatch its resources to force compliance or to levy punishment.

Governments pass laws to change behavior. Sometimes government uses carrots — engage in this particular activity we like and you’ll be rewarded with subsidies. And sometimes government uses sticks — engage in this particular activity we don’t like, and you will be punished.

Kohn appears to grasp that last part. After all, she specifically wrote that if you don’t follow a law, you might have to “suffer the consequences.” Unfortunately, she doesn’t expend any mental energy following that logic all the way through. In the absence of force, how are any consequences possible? Who has been sanctioned by government to impose this suffering?

Americans don’t pay taxes out of the goodness of their hearts. They pay taxes to avoid force in the form of government fines or levies. We don’t generally drive the speed limit because it’s fun to go slow. We do it to avoid fines and arrest, an act which requires literal physical force. Martin Luther King, Jr. didn’t end up in a Birmingham jail cell because he longed for the quaint, cozy confines of prison. He ended up in that cell because police forced him into it for the crime of peacefully protesting segregation. That’s how laws — even vile ones like those of the Jim Crow era — work. Blacks didn’t choose to use different water fountains or lunch counters. They were forced to do so by police, hoses, and dogs.

A law is nothing but a threat backed up by force. This principle is not “ideological,” as Kohn tried to suggest on Twitter. It is definitional. The threat of force is what converts a mere recommendation into an actual law.

At one time, Kohn appeared to roughly understand the principle of government force. During the debate over the Obamacare contraceptive mandate, Hobby Lobby argued in court that it should not be forced by the government to pay for abortifacients for its employees. The arts and crafts supplier said that if employees wished to use abortifacients, they were free to purchase those with their own money.

This was unacceptable to Kohn, who claimed in a 2013 column for The Daily Beast that “right-wing conservatives are using the Hobby Lobby Supreme Court case on contraception to force their religious views on the nation”:

To put it mildly, our forbearers would be appalled by how right-wing conservatives are trying to use government to force their religious views on all of us.

[…]

Hobby Lobby wants to go one step further. This corporation, which already takes advantage of special government benefits by incorporating as a private business in the first place (entitling Hobby Lobby to tax benefits and liability shelters to which individuals alone are not entitled), wants to use its government-created corporate status with the help of government-run courts not just to express its religion on a poster or what have you but to force its employees to comply with the supposed religion of the corporation’s founders. This is, plain and simple, a corporation trying to contort government to impose the religious views of some onto many. This is precisely what our nation was founded against.

She asserted the existence of government force five separate times in that article. Granted, she had it completely backwards, but at least she accepted the premise. Hobby Lobby didn’t want to force anything on anybody. Its owners wanted the freedom to not pay for items they considered to be abortifacients. Hobby Lobby never argued during the case that its employees should be forever banned from using certain types of birth control. The company merely suggested that maybe people should buy some things with their own money. Perish the thought.

But to Kohn, even though a company choosing not to pay for something has nothing to do with government force, that was an example of blatant government force, a dynamic which as of yesterday she said did not even exist. Kohn apparently believes that government force doesn’t exist, that individuals can be forced to “suffer consequences” in the absence of force, that fines and imprisonment for non-compliance don’t constitute force, and that, somewhat paradoxically, an individual choosing to abstain from an activity is a perfect example of the use of government force.

As I noted previously, Sally Kohn has a law degree from NYU.

While the Indiana religious freedom debate raged on last week, I joked that many same-sex marriage supporters had moved the goalposts from “if you don’t like gay marriage, then don’t have one” to “if you don’t like having your conscience violated, then don’t have one.” I didn’t expect to be proven right in less than a week, but Sally Kohn is a charitable person who decided that I needed to be vindicated in short order.

“Don’t like following the laws that apply to businesses,” Kohn asked at the end of her column for TPM. “Then don’t start a business. That’s your choice.”

Segregationists made the exact same argument during the Jim Crow era. Thank goodness that people like Martin Luther King, Jr. ignored them, government force notwithstanding.

Photo by Wikimedia
Sean Davis is the co-founder of The Federalist.
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