Hobby Lobby and How Left and Right Flipped on Religious Freedom

A law conservatives are citing was supported by liberals. Now the stances have reversed. Why?

Was contraception illegal in 2010? Were people unable to purchase birth-control pills without the consent of their employers?

The answer to these questions is no, despite the repeated insistences that the Supreme Court would bring about this state of affairs by ruling in favor of Hobby Lobby and against the Obamacare contraception mandate.

In fact, Hobby Lobby’s owners only object to being required to cover four of the twenty mandated contraceptives. They argue that they do not wish to be complicit in providing abortion-inducing drugs. But the same people who want to “ban bossy” now speak as if accommodating a religious for-profit employer necessitates overturning Griswold v. Connecticut.

Liberals have come a long way since 1993, when they helped pass—and Bill Clinton signed—the Religious Freedom Restoration Act. Back then, they were willing to endorse the principle that the government must have a compelling interest in making a person act contrary to her religious conscience—and even then, government must use the least coercive means to further that interest.

Whatever the First Amendment implications of the Hobby Lobby case, it is impossible to argue the contraception mandate meets that test. Large swathes of the American public are already exempt from the mandate, so how compelling could the government interest be? Second, there are ways to make birth control more accessible to women without making religious people pay for it.

Several things have changed in the last twenty-one years. First, the issue that helped give rise to the Religious Freedom Restoration Act was the sacramental use of peyote by a Native American church. The Supreme Court upheld an Oregon law forbidding peyote, with conservative Antonin Scalia writing the majority opinion and liberal Harry Blackmun of Roe v. Wade fame authoring the dissent.

Note that both the specific freedom in question and the plaintiff in the case were likely to arouse liberal sympathies. Not so traditionalist Catholics who don’t want to subsidize contraception or evangelicals who don’t want to photograph a same-sex wedding. (One could argue these different circumstances play a role in conservatives taking a different position too.)

White liberals have also become more secular in the last two decades. In 2012, Barack Obama carried 62 percent of voters who never attend church while Mitt Romney took just 34 percent. Liberal mainline Protestant churches have long been in decline. A press release from religious leaders defending the contraception mandate is signed mainly by members of these traditions.

Among a few liberals, this has resulted in an almost comical inability to comprehend what religious practice really entails beyond attendance at worship services or prayer. Others simply view religious people as conservative political opponents with misguided, perhaps even evil and bigoted, views.

The religious right didn’t like Bill Clinton and came to oppose Jimmy Carter, but both were Southern Baptists who shared some of their theology and were certainly familiar with evangelical culture. Obama came from a more secular background and then eventually attended a church affiliated with the liberal United Church of Christ.

Nevertheless, Michelle Obama captured the essence well in her remarks to the African Methodist Episcopal Church in 2012. “Our faith journey isn’t just about showing up on Sunday for a good sermon and good music and a good meal,” she said. “It’s about what we do Monday through Saturday as well…”

Hobby Lobby’s owners and the Little Sisters of the Poor would likely agree.

Finally, the Hobby Lobby case has gotten caught up in the liberal crusade against corporate personhood, which intensified after another Supreme Court decision: Citizens United. Consequently, one reads things like this Gawker report: “Today the Supreme Court will hear arguments on a question that sounds insane: ‘Do corporations have religious beliefs?’”

Incorporated churches might find the idea less insane.

The reality is that very few Americans even disapprove of birth control, much less want to make it illegal. Gallup found that 82 percent of U.S. Catholics find birth control “morally acceptable,” and there is no significant partisan difference on the issue. This is really about religious freedom and, to a much lesser extent, abortion.

Most liberals have recently adopted a very crimped view of what religious freedom means, especially as it might be exercised by conservative people of faith. They also have long believed in “positive rights,” where compelling others to pay for the enjoyment of certain goods is mislabeled “freedom.”

That’s a problem the Supreme Court isn’t going to solve.

Pages