My general view on the Supreme Court is that it should do less. That nouveau libertarian George Will criticized the Court for resorting to “judicial minimalism” to achieve unanimity. But I, for one, find the Chief Justice’s emphasis on achieving modest but sustainable results refreshing. Judicial minimalism is generally better than the other extreme more characteristic of our time—judicial maximalism.
In some ways, my view is the opposite of that of the outstanding libertarian constitutional scholar Randy Barnett. Randy wants to combine the spirit of Lochner with the spirit of Roe to achieve a kind of consistent judicial activism based on the presumption of liberty on both the economic and the personal autonomy fronts. I doubt there’s a constitutional warrant for either kind of activism. As far as I can tell, our Framers made judicial review legal, but they also thought that in order for it to be safe, it would have to be rare.
Generally (with exceptions), it’s corrupting for a free people to trust in the courts to protect their rights. So it was self-indulgently enervating for some Republicans to look to the Court to protect the country from Obamacare. The Chief Justice, I think, understood that it would have been imprudent for the Court, by a 5-4 vote, to resolve a national controversy over such a “transformational” law that could be resolved at the ballot box. It would arguably also, in spirit, be unconstitutional to do so with an interpretation of the Commerce Clause that had been dormant for many decades. And the Republicans have only themselves to blame for not making as the centerpiece of their 2012 campaign the educating of voters on the real deprivations to personal liberty of that law.
I certainly respect the astuteness of those gay-rights activists who have seen that they couldn’t rely on the courts to give them same-sex marriage. The key to their success—and the foundation of sustainable Court decisions on their behalf—has been turning public opinion around. Roe and subsequent “abortion rights” decisions by divided Courts have, in some ways, been pyrrhic victories for the “pro-choice” movement. Because opinion hasn’t turned and pro-life activism remains aroused in opposition to illegitimate judicial activism, abortion isn’t all that accessible in much of our country. The Court has said we should view both Roe and Brown as watershed decisions meant to end divisive national controversies. But everyone can see the difference. Brown, for one thing, was unanimous. That’s why abortion-rights activists have turned once again, with the help of the Obama administration, in a more aggressive effort to transform public opinion. The real point of the contraceptive mandate is to convince people that those evildoers who want to ban abortion want to do the same with contraception. Contraception, of course, is very popular, and the right to use it is viewed by an overwhelming majority of Americans as part of the liberty protected by the Constitution.
With all this in mind, the real lesson of Hobby Lobby is that observant religious believers in America shouldn’t rely on the Courts to protect their liberty. The Court didn’t root its decision in the enduring meaning of the Free Exercise Clause. It depended on Congress’ interpretation of that clause in the Religious Freedom Restoration Act. The Court, according to the reigning precedent of Employment Division v. Smith, actually views that interpretation as incorrect, but has grudgingly (and correctly) allowed that statute to limit the power of the national government (although not state and local governments). According to RFRA, government can only limit someone’s free exercise of religion if it has a compelling state interest. That means that any law that limits free exercise has to be scrutinized strictly, and the benefit of any doubt is given to the claim for religious liberty. It’s the job of government to accommodate the sincere religious believer whenever possible. With this standard, it’s actually pretty amazing that only a bare majority of the Court thought that the Hobby Lobby guys had to be accommodated.
According to Scalia’s opinion for the Court in Employment Division, the claim for free exercise doesn’t exempt anyone from obeying a generally applicable law that wasn’t passed with the intention of restricting free exercise. So Native Americans who use peyote as part of a religious rite can’t use the Constitution to put their activity outside the reach of anti-drug legislation. There is a good amount of “originalist” evidence that Scalia’s interpretation is correct, just as there’s evidence (that used to be embraced by the Court) in support of the RFRA interpretation. Most of the liberal outrage against the Hobby Lobby ruling is in the spirit of Scalia’s opinion: The claim of free exercise can now be used to get anyone and any corporation out of anything, including obeying laws that protect the civil rights of women, blacks, and gays. The apparent narrowness of the Court’s ruling doesn’t really mask the slippery slope it has created.
The remedy of “liberals” is obvious. There’s no need to turn the Court around on the meaning of the Constitution. All that’s required is to repeal or amend RFRA. When that statute was passed, it was pretty darn uncontroversial. Liberals saw it as protecting the countercultural lifestyle of the Amish or the multicultural diversity displayed by Native American religion. Only the more prescient conservatives saw the possibility of the national government launching a war against the rights of churches to teach authoritatively as organized bodies of thought and action. But now the Court has made RFRA controversial. And liberals will say that we can’t let suspect claims for religious freedom trump civil rights. It’s not really the Constitution or the Court, but a controversial law based on a controversial interpretation of the Free Exercise Clause, that’s the foundation of the religious liberty of the Hobby Lobby guys. The Court, if it follows precedent, would have to back off if the statutory foundation of its defense of religious liberty were removed.
Not only that, the effect of high-visibility, rights-based decisions by divided Courts (especially 5-4 Courts) is typically to energize politically those opposed to the decision. From this view, Hobby Lobby is a stimulus package to the Obama administration’s war on churches that dissent from his view on abortion and same-sex marriage. The Court’s decision didn’t convince anyone who wasn’t already convinced that the Hobby Lobby guys were right. And it makes it easy to make the case that our Republican, Catholic Court want to deny women not only abortion but contraception. It’s easy for us to dismiss this case as demagoguery, but the Republican and Catholic demographics are there to be used by the demagogues. It may now be very effective for Democrats to campaign on “mending, if not ending” the RFRA.
And, of course, the 5-4 vote this time won’t be sustainable in any case unless the Republicans win the next presidential election.
My takeaway: The defense of Free Exercise of religion in our country depends on its defenders turning public opinion. Right now they’re losing, and the Hobby Lobby decision might actually have hurt their cause. The real lesson of the decision is that the future of religious liberty under our Constitution is mostly with the people.