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Wednesday, March 26, 2014

Dorf on Ideological Polarization and Reversal in Hobby Lobby

Mike Dorf has an interesting column at Verdict arguing that the oral argument in Hobby Lobby suggests that the arguments over religious freedom have become more ideologically charged and, in various ways, display a reversal in views between liberals and conservatives. I certainly agree, as I wrote yesterday, that these issues have become more charged than they have been for some time. And although I might not characterize the whole thing the way he does, I do find much to agree with in what he writes. In particular, I agree with him that the case, or at least the underlying issues it hints at, present a fairly stark conflict between the basic values of liberty and equality. (I also have a piece coming out on this in Commonweal next week; I'll link to it when it becomes available.) Each side may at times exaggerate this conflict, and at other times may argue that, depending on a particular definition of those terms or of the facts, the "correct" outcome presents no true conflict between liberty and equality. (For instance, because there is "no mandate.") But there is a conflict, and although we can and should attempt to manage it in practice, it is real and ultimately cannot be perfectly resolved. I do have a couple of points I would add to what he says.

First, Mike focuses correctly on the culture war aspects of the case, but his description is perhaps a little lopsided. He writes: "The culture war of the last couple of decades shattered the bipartisan alliance that gave rise to RFRA. In the ensuing years, the right has increasingly sought to portray Christian religious traditionalists as a beleaguered minority." He is certainly right that the RFRA alliance seems to have shattered, at least on this issue and perhaps more generally. (Again, see my post yesterday, and a post by Tom Berg at Mirror of Justice, on a striking recent letter arguing that, in large part for "expressive" or symbolic reasons, any state RFRA legislation right now is a bad idea, even if the same legislation would have been fine twenty years ago.) I probably share the druthers of the left more than on the right, at least on most issues. But I think Mike's description emphasizes the right as a culture-war actor too much and doesn't really give equal time to the left's role in the culture war. On Facebook, every time I say something of the sort, I get comments about "false equivalency." So let me note that I am not making an equivalency claim, false or otherwise. I'm simply saying that a culture war typically involves two actors and that he, or we, might attempt to consider how conservatives or religious traditionalists would describe the same period of time. "Liberals who were willing to enact RFRA to protect minority religions from direct interference have started to balk at the idea of a religious right that goes that far," Mike writes. From the other side, we might say that religious conservatives have started to balk at an egalitarian left that not only has been successful in changing the culture, but increasingly views religious claims as dangerous or inconsequential, is increasingly pervasive in enacting those cultural changes into law, and increasingly rejects any separation between public and private on these issues. 

Mike also writes that "Hobby Lobby involves the ACA, a law that conservatives have fought at every turn, in every possible venue." Fair enough! But my reading of the exemption debate over the contraceptive mandate, although much more optimistic and perhaps generous than that of some of my religious friends, is that a dynamic of refusing to compromise on the ACA, and particularly on its contraceptive provisions, was also at work on the left, for various principled and political (both electoral and interest-group related) reasons. The exemptions granted could have been more generous, and certainly started off very narrow, but they faced West Wing resistance every step of the way. (See, e.g., this story.) There are, again, political and ideological dynamics at work on both sides here. 

Finally, Mike writes that the conservative/religious "culture war" view has "manifest[ed] itself in ever more extreme claims." He might think more about the dynamics that lead to this. Some of it is partisan, to be sure. Some of it has to do with the doctrinal shape of the prevailing law, which encourages categorical claims rather than balancing and thus raises the stakes on each issue. Some of it may have to do with the (real or perceived) increasing reach and potence of civil rights laws and their pervasive reach into various areas of life. And much of it may have to do with the particular public interest litigation groups involved in various cases. I could well see the ADF or the Thomas More Law Center making extravagant and questionable legal claims and finding some plaintiff to sign on to them, while a more "moderate" litigation group might not bring similar suits. Of course we see similar dynamics at work on the other side. Witness, for example, the debate that occurred for some time between "establishment" and independent gay rights groups and litigators about when and how to pursue various claims. Witness, as well, the Solomon Amendment litigation, in which a number of groups--supported by countless law professors!--made claims that the Court unanimously rejected as extreme. (Interestingly, those scholars afterwards more or less consigned the whole case and the arguments they had made about it to the memory hole and never mentioned it again, despite the obvious tensions it presented with arguments they had made in other cases.) We saw a similar willingness of many groups to make arguments in the Hosanna-Tabor case that were again overwhelmingly rejected and criticized by a unanimous Supreme Court. This is just a start; there are many interesting questions about what constitutes an "extreme claims" and why, on either side, such claims might end up becoming more common. For now I'll just say that it's an interesting issue and that Mike might consider these additional possibilities.  

 

Posted by Paul Horwitz on March 26, 2014 at 09:45 AM in Paul Horwitz | Permalink

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" But my reading of the exemption debate over the contraceptive mandate, although much more optimistic and perhaps generous than that of some of my religious friends, is that a dynamic of refusing to compromise on the ACA, and particularly on its contraceptive provisions, was also at work on the left, for various principled and political (both electoral and interest-group related) reasons. The exemptions granted could have been more generous, and certainly started off very narrow, but they faced West Wing resistance every step of the way. (See, e.g., this story.) There are, again, political and ideological dynamics at work on both sides here. "

1) This is a very bad reading; there were many compromises on the
law to deal with this issue (note - in a law for which 0 Republican Senators voted.

2) Hobby Lobby is demanding an unprecedented exemption due to the 'undue burden' of something (a) they've lied about (contraceptives = abortion) and (b) something that they were already doing.

IANAL, but I'd hate to have money bet on me going into court and saying 'I believe that A is B, and therefore I shouldn't have to do B', 'I want an exemption which has never before been granted for the type of business organization which I quite deliberately chose for the separation of business from my, personally' and 'I want an exemption on religious grounds for something which I was doing right up until the law required it'.

3) The big issue here which you're refusing to address is that the right has seized upon a strategy of redefining 'religious freedom' to mean 'freedom for them to do as they please, and others to bear the consequences'. What would happen if an employee of Hobby Lobby said that they had converted to Islam, and therefore *demanded* Friday off?
Let alone if they had previously had no problem working on Fridays, long after their conversion. Let alone if they showed up at Friday happy hour for Hobby Lobby employees, to chug some beers.

Posted by: Barry | Mar 26, 2014 4:46:56 PM

Your facebook friends are correct - this is false equivalency as its best/worst.

Posted by: etseq | Mar 26, 2014 10:34:24 PM

"contraceptives= abortion"

As a past comment underlined, and attacks of Sandra Fluke etc. make clear, simply put the effort here goes beyond abortion.

The specific case taken by the USSC might be allegedly about "abortion" (even if Ella or something in some small statistical way might affect a fertilized egg, that simply is not how the general public views "abortion" ... and even if that is "abortion," then birth control pills generally would be "abortion," underlining the breadth of the claim), but religious liberty goes beyond that.

I would move passed "lies" ... the arguments made here have broad implications and trying to make it about "abortion" is a very misleading statement of the ultimate bottom line here.

Posted by: Joe | Mar 27, 2014 11:45:40 AM

Having studied this for many years, I think that Mike has it exactly backwards regarding who the aggressor in the culture war is. Liberal groups almost universally supported RFRA, and then abandoned it when they realized that it might involve mild limits on the sacred cow of antidiscrimination laws. By contrast, I haven't heard of any religious right groups opposing RFRA-like laws because they might allow things conservatives don't like, e.g., like legally using narcotics as in the Smith case itself.

Posted by: David Bernstein | Mar 27, 2014 1:29:47 PM

" Liberal groups almost universally supported RFRA, and then abandoned it when they realized that it might involve mild limits on the sacred cow of antidiscrimination laws. "

Where 'mild limits' means 'massive holes'.

Every single argument I've seen from the right would
logically conclude with 'and the CRA should be abolished!'

Posted by: Barry | Mar 27, 2014 1:42:08 PM

30 or so states have RFRA-like standards by state constitution or statute. I think at least 29 of them still have civil rights laws. Wait, make that 30. And they've barely been affected, if at all, by RFRA in practice.

Posted by: David Bernstein | Mar 27, 2014 7:58:29 PM

RRFA need not be "abandoned" really.

"Sacred cow" or not -- yes, equal protection ('we hold these truths to be self evident ... all men [human beings] are created equal') is pretty sacred in this country -- "restoring" religious liberty to pre-Smith days would not mean tossing them to the wayside in various contexts. It need not be "abandoned" here either, since "restoring" religious liberty would be applying the principles of U.S. v. Lee.

Smith involved peyote. Where are all these "conservatives" who are willing to apply it when "liberal" rights are at issue? How many conservatives really care about peyote? OTOH, claims that marijuana should be allowed, which actually is honestly something a few religions believe? Yeah, not seeing it. What about abortion? Some people think their God gives them the obligation in certain cases to practice abortion. Do conservatives think the growing number of burdens on abortions raise religious liberty concerns?

As usual, there is a certain selective concern about application here. But, as usual, some selectively call out "liberals," which btw is what certain "libertarians" do.

Posted by: Joe | Mar 27, 2014 10:54:43 PM

A comment from ThinkProgress:

http://thinkprogress.org/justice/2014/03/24/3416549/hobby-lobby-they-have-a-plan/

David, the goal quite clearly (see the attempt in Arizona) is to carve as many holes in the current legal system as possible.

Posted by: Barry | Mar 28, 2014 6:36:25 AM

Joe, neither "equal protection OF THE LAWS," or the natural rights basis of human equality as noted in the Declaration of Independence, speak to whether there should be anti-discrimination laws for the private sector at all, much less whether there should be exceptions for them for religious freedom. As for marijuana, undoubtedly conservatives were aware of the existence of Rastafarians etc when RFRA passed in the early 90s, and I'm not aware that it prevented any of them from supporting the legislation.

Barry, you've drunk the Kool Aid on Arizona, which was solely an attempt to clarify Arizona's RFRA and given our many years of experience with state and federal RFRA, was unlikely to have any significant impact on antidiscrimination law.

Posted by: David Bernstein | Mar 28, 2014 10:56:33 AM

As for employees demanding Friday off for claiming to be Muslim- that would be between the employer and employee. Employees may be valuable enough that it is worth it to hire them and offer them Fridays off as compensation. Then again, maybe not.

It is wholly different if it was the government mandating work on Fridays, despite the mutual wishes of employer and employee.


what we have with the RFRA is that Congress passed it in response to Employment Division v. Smith. As such, Justice Blackmun's Smith dissent controls when interpreting the RFRA.

Posted by: Michael Ejercito | Mar 30, 2014 2:07:59 PM

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