Why has the liberal/conservative siding on religious freedom switched?

[drwex]

Consider the arguments that happened this week in Hobby Lobby in historical perspective. It's an item of faith among Court-watchers that you can't predict votes from oral arguments; that said, it sure looked like the Court is split 4-4-1 on this one and the result could be 5-4 with Kennedy deciding it. The four Justices most often seen as Conservative/right-leaning/Originalist seemed to be favoring Hobby Lobby's arguments that RFRA means they don't have to allow their employees to buy plans that include contraceptive coverage. Conversely, the four Justices most often seen as Liberal/left-leaning appear opposed to that view.

One piece of relevant history is a case known as Employment Division v Smith; sometimes called the "peyote case". Here SCOTUS ruled - in an opinion written by Justice Scalia - that the government was allowed to make laws barring Native American religious practices that involved ingesting peyote. The conservative justices joined Scalia in the majority and were opposed by liberal justices, who believed that the Constitution protected minority religious practices despite government interests in things such as drug regulation.

So why have things (apparently) flipped now? My opinion is that a great deal revolves around that notion of "minority". Liberals (very broadly speaking) differ from conservatives in their view of how Christian religious practices are handled in America. The (in my view fictitious) "war on Christmas" is emblematic of this difference. Conservatives see their religion under attack; liberals see an attempt to stop the majority from forcing its practices on everyone else. In Hobby Lobby, the owners of the company wish to require their employees to follow their own personal religious beliefs, and not access contraception. In Employment Division, the government wished to trump a minority religious practice with a majority view that peyote should be illegal.

There's a parallel here, I think, with responses to gay marriage. Conservatives cast efforts to promote same-sex marriage as an attack on themselves; liberals cast it as an attempt to get equal treatment for a minority. This case also implicates abortion, because at least Hobby Lobby has admitted that it is not opposed to all contraceptive coverage, only to coverage that its owners see as providing abortion-like services. Abortion cases often push people toward traditional positions.

My personal opinion is that if Hobby Lobby wins, even narrowly, it will be a spectacularly bad thing. It will be the first time that the Court has been willing to equate a corporation with its owners in matters of religion, and it would open up pretty much every piece of legislation and regulation to religious examination. And it would (further) damage important freedoms the First Amendment ought to be giving us.

Comments

[pierceheart.livejournal.com]

I'm waiting for the SG to argue that the RFRA should therefore allow polygamy, and strike down all remaining adultery laws in the US.

[rmd.livejournal.com]

So, if they get a religious exemption for THINGS THAT DO NOT ACTUALLY CAUSE ABORTIONS because they think they cause abortions, what else will they view as a possible abortion-causing substance? Lipitor? Pez dispensers? Prescription-strength Ibuprofin?

[pierceheart.livejournal.com]

Lipitor? Pez dispensers? Prescription-strength Ibuprofin?

Do any of those prevent implantation of a fertilized egg, as their primary intended function?

Let caveat that I agree with your premise that these forms of contraception are not abortifacients, but I do not agree with your slippery slope argument.

[rmd.livejournal.com]

Nope. But it's not a viable pregnancy until there's implantation. Which is why it's not considered a miscarriage if the unimplanted zygote makes its own exit without implanting, which actually happens pretty often even without hormonal birth control added to the mix. (Personally, I was on hormonal birth control pills because my uterus was in the process of going feral and (it turns out) turning cancerous and we were trying to tame the wild hyperplasia.)

The ACA is already different from Romneycare in that the ACA doesn't provide any funding for abortion procedures (like D&C) or any actual chemical abortifacients. If they want to make the case that we should change the definition of what that means in order to align with their religious beliefs, that would be a different argument than they are making here.

If they're making the claim that they do not wish to provide abortifacients, then they should play on the actual playing field with the rest of us stick with the actual definition of abortifacients and not draw the line in their own location somewhere on some other playing field.


Personally, if they actually find in Hobby Lobby's favor, and really do pierce the corporate veil separating "owners/shareholders" from "the corporate entity", then I say the door should swing both ways, and I want to round up every major shareholder and corporate officer of Freedom Industries and charge them for the W VA chemical dump.

ETA: sorry, just saw your edit, and, yeah, I'm waving around my arms with great hyperbole, here. I think a more serious (and likely) example of a slippery slope would be psychiatric care or rehab and scientologists. Because they really do hate those things and they really do love lawsuits.

[pierceheart.livejournal.com]

Frankly, while I disagree with them, I think they are consistent with their rationale that life begins at conception, which is a belief held by a significant number on the "pro-life" side.

Again, I disagree with them (and, frankly, disagree most vehemently in that I think the Hyde Amendment violates the First amendment.)

[vvalkyri.livejournal.com]

I really like the idea of accountability for the va chemical dump.

[pierceheart.livejournal.com]

As to why things have flipped, I'd argue they haven't: the RFRA was specifically enacted to counter the arguments in Smith.

[drwex]

I don't follow. The RFRA enjoyed pretty wide bipartisan support, iirc (OK, checked Wikipedia which says unanimous in the House and 97-3 in the Senate). If Conservatives were aligned with the Smith side in that case and losing caused them to support RFRA then why were the Conservative justices against Smith?

I'm not a lawyer, I'm not an expert in this, but ...

[pierceheart.livejournal.com]

First of all, expecting consistency from Scalia in any way other than that which supports what Scalia wants is insanity.

Secondly, I think the framing of your discussion could lead those unaware of the history to think that Smith came after RFRA, as it suggests that Smith is the only thing that can be brought to bear in this case, whereas the RFRA, coming after Smith (set aside, for the moment, an interesting question I as a layperson cannot answer - how can Congress tell the Courts how to do their jobs), provides Scalia et al an excuse to do what they likely want to do anyway - give special treatment to their chosen people.

Thirdly, conservative legislators and conservative judges appear to act differently in how they wish to act conservatively.

Personally, I think this whole thing is an ugly quagmire which will likely end up with an extremely narrow ruling - else we could see revisitation of FLDS plural marriage, and, conceivably, an attack on adultery laws, given that there are minority religions who hold that "all acts of love and pleasure" are the rituals of their Deity

[sariel-t.livejournal.com]

Agreed.

[c1.livejournal.com]

What would happen if, by chance, the government saw fit to regulate the slaughter of animals to the point where it infringed on kosher and halal laws? Should the butchers be able to claim an exemption on first amendment protections?

I don't have a good answer for this, by the way. For me, it's a thought experiment. But WRT Hobby Lobby, I don't think there will be a winner in this case, however it's decided.

[drwex]

In fact, the government already does, in the sense that kosher slaughter houses have to pass US FDA inspections and follow governmental health and safety regulations.

If Hobby Lobby wins then I can easily see a case where a religious butcher (kosher or halal) could bring suit for exemption to sanitary regulation.

[c1.livejournal.com]

You missed my point. Maybe this will be more clear: what if the US government decided that kosher slaughter didn't meet hypothetical regulations governing a humane kill? I mean, as quick as it takes to bleed to death, the animal is still alive for some period following the butcher's stroke. So hypothetically, there's a regulation that says death must be as instantaneous as possible, and really, a pneumatic bolt to the back of the head would appear, on the surface, at least, to meet that burden. (No-one can say from direct experience, but having one's brains blown out would appear to mean "lights out" fairly instantly.) Should a kosher slaughterhouse be able to challenge those rules on first amendment grounds?

[drwex]

I think I got your point exactly. To use your example, slaughterhouses that kill in non-FDA-approved ways can already bring such suits. That's what RFRA allows already. The Hobby Lobby case would extend that from enterprise-wide practices to individual beliefs of a company's leaders.

[c1.livejournal.com]

But the slaughterhouse doesn't believe in kosher slaughter; it's purely a belief of the owners/operators.

[drwex]

The slaughterhouse doesn't have beliefs. In this case, it's a question of how a business is operated which (as I said) is what RFRA was designed to address. The Kosher slaughterhouse could be owned by vegetarians and it would still have the same standing with respect to FDA regulation. There's simply no analogy to Hobby Lobby here.