Commentary Magazine


Hobby Lobby, Religious Liberty, and the Dangers of Complacence

It’s tempting, and easy, to dismiss Democrats’ legislative response to the Supreme Court’s Hobby Lobby decision. Senate Democrats say as soon as today they could bring up a bill that would, as Politico terms it, “override” the high court’s ruling, which followed the course set out in the Religious Freedom Restoration Act. Democrats want to push this as part of the “war on women” by making shameless false claims about the court’s ruling and trashing both RFRA and the First Amendment.

Conservatives have been generally dismissive of the White House’s “war on women,” and for good reason. Additionally, they may be further tempted to deride the left’s response now that they’ve won a limited victory at the Supreme Court. It also requires a heroic effort to take seriously any policymaking that begins with Harry Reid including Clarence Thomas in his category of “white men” who should be ignored. Reid is railing against the Supreme Court, but he does not appear to be terribly familiar with it. (As an aside, why mention the race of the justices at all if this is an issue about gender? Because leftists can’t speak, apparently, without accusing someone of being racist.)

But this attitude would be a mistake, with regard to the Hobby Lobby pushback. To be sure, conservatives should avoid getting drawn into a fictitious debate on birth control based on completely false premises and designed not to advance policy solutions but to give Democrats yet another chance to insult the intelligence of the nation’s women and to put Christianity–and by extension, religious belief in general–on trial. After all, it’s unlikely that yet another Reid-led Democratic effort to undo basic American rights will pass the House.

And getting drawn into this debate risks giving the Democrats what they actually want: a change of subject. As the Obama presidency plummets in popularity and the corruption and abuse of power scandals keep multiplying, the Democrats want to talk about anything but the issues dragging them down.

Nonetheless, conservatives should think twice about taking the debate over this bill–not the president’s executive action, but the Senate bill on which there would presumably be debate and a vote–too lightly. What the Democrats are trying to do is build a public-policy consensus that would erode religious liberty by holding a referendum on whether America’s first freedom, and the basis for the American project, should be undone in the service of left-wing culture-war extremism.

Is it worth undermining religious freedom just so Democrats can distract the electorate from their inability to govern with a public discussion about the economics of sex? For Democrats like Harry Reid, the answer is an unequivocal yes. Basic freedoms are fine in the abstract, according to Democratic policymakers, but they often infringe on Democrats’ quest for power. So they must be subverted.

Conservatives must understand that the risk here is not actual policy, since the bill won’t pass the House. The risk is that by ceding space in the public sphere to liberal demagogues, they won’t engage the important part of this debate. Since, as I’ve written previously, opposition to religious freedom is now a partisan Democratic position, conservatives are the last line of defense. What they don’t want is for the left to own a debate that could build a public consensus against those freedoms. If conservatives won’t speak up for religious freedom, nobody will, and it will be ignored and trampled.

It’s also important because none of this takes place in a vacuum. In a very smart piece for BuzzFeed, Chris Geidner tracks the evolving fight over religious exemptions in employee non-discrimination legislation. He notes that LGBT groups and their supporters are backing away from anti-discrimination legislation they were initially inclined to support because of the religious exemptions being added. The bill will probably not be advanced in the House this year, Geidner notes, and explains why these groups are fighting about it anyway.

He gives three reasons: to shape the next version of this legislation that comes through Congress in the next session; because the groups are unnerved by the Supreme Court’s upholding of religious freedom protections in the Hobby Lobby case; and to influence President Obama’s forthcoming executive order on the issue. In other words, these groups recognize that although the Democrats’ demand for employee-sponsored drugs that may act as abortifacients has nothing to do with gay rights, in some way it has everything to do with it.

Settling law and winning public debates over religious freedom affects other laws and other debates that follow it. Just as the Supreme Court sets precedent in legal rulings, so too the passage of laws and other actions set precedent in how the public understands the issues at play and how politicians can attract support for their own legislative projects. The left has always operated with the knowledge that there’s no off-season here. They are counting on conservative exhaustion, complacence, or both. Conservatives must demonstrate neither.

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