We have only begun to digest the full implication of the assault on Sony pictures. Assuming it indeed was perpetrated by North Korea, (and evidence is building that it may have been, at least partly, an inside job) in order to block a movie it does not like, the hack, and the extortion of a private corporation is an assault on the very idea of civil society that we Americans cherish.
The Hobby Lobby case, “one of most publicized controversies in decades involving a religious claim,” in the words of Columbia law professor Kent Greenawalt, prevented the Obama administration from mandating under the Affordable Care Act (ACA) that all employers cover all contraceptives approved by the Food and Drug Administration—even those drugs and devices that objecting employers believe “cause the demise of an already conceived but not-yet-attached human embryo.”
The U.S. Supreme Court held that the Religious Freedom Restoration Act (RFRA) prohibits the government from forcing closely held, family-owned corporations to cover such drugs and devices if a less restrictive means is available. One less restrictive means available to the administration, the Court noted, was to extend to such corporations the significant concessions the Obama administration already made for objecting, religious non-profits. This is a step the administration is now taking.
It was a high-profile win for religious objectors. Nonetheless, the highest percentage of Americans in a decade, according to the Pew Research Center, see religion’s influence as waning. How can this be?
Hovering like a stern schoolmarm over much of our political discourse and decision-making is a sort of lurking censor, monitoring political decisions to ensure that they are based on “secular” grounds and purposes. Let us call this regulator “the secularism constraint.”
In many cultural neighborhoods, the secularism constraint seems almost as natural and ineluctable as the law of gravity. Legal scholars and political theorists argue for one or another variant of the constraint (a/k/a “public reason”), or more often just take it for granted. Constitutional doctrine– the so-called Lemon test, from the case of Lemon v. Kurtzman (1971)– provides at least ambiguous validation with its “secular purpose” requirement for government action.
This week it’s the Hobby Lobby decision and the “contraception mandate” that are provoking discussion. But beyond the specific facts and carefully narrow decision in Hobby Lobby runs a more general and perennial question: Does freedom of religion mean that sincere religious objectors have a qualified (not categorical) right to be exempted from otherwise applicable laws– a draft law, a compulsory schooling law, a regulation requiring employers to provide insurance coverage that includes contraceptives and some abortifacients? At least according to the conventional wisdom, the Supreme Court’s answer to that question for many decades was “no.”
This next episode of Liberty Law Talk is with Steven Smith on his new book The Rise and Decline of American Religious Freedom. Our conversation explores Smith's challenge to the dominant academic narrative that the Supreme Court's mid-twentieth century decisions imposing secular neutrality vindicated the religion clauses of the First Amendment. In this version, their essence was to secure a government free of religion, tout court. But what if the First Amendment's original public meaning and subsequent practice reflected a very different essence? Our conversation begins with the history of the ratification of the First Amendment. What do we make of…
“As an initial matter, the Clause probably prohibits Congress from establishing a national religion.” –Justice Clarence Thomas, in his concurring opinion in Greece v. Galloway
“Probably”? As if the May 5, 2014 Town of Greece v. Galloway decision, upholding prayers said at the beginning of legislative meetings, didn’t upset strict separationists enough, Justice Clarence Thomas’s radically originalist concurring opinion was enough to bring on shouts for an exorcism. To the contrary, Thomas’s reasoning about the First Amendment establishment clause is the most rational way to preserve liberty, by recognizing the institutional principle of federalism as well as the individual right of religious free exercise. This becomes clear once we see this opinion in light of his earlier, lengthier establishment opinions.
Recently, the Minnesota Supreme Court upheld the appeal of a man convicted and sentenced to a one-year prison term for having aided the suicides of two depressed people through advice and encouragement he had offered them over the Internet.
The grounds on which the appellant successfully challenged his conviction were that the statute under which he had been prosecuted and convicted — and which proscribed ‘encouraging, advising or assisting another in committing suicide’ — violated his First Amendment right to free speech.
There are striking parallels in how the left-liberals treat constitutional liberty in political and religious expression. First, their positions in both areas are premised on a kind of faux neutrality that masks consolidation of their own power. As I have discussed, in campaign finance, left-liberals seek to eliminate the undue influence of the rich, regardless of their viewpoint. What this “neutrality” ignores is that by restricting the influence of some powerful citizens, it effectively expands the influence of other powerful groups who substantially affect the political climate and are not similarly constrained. These powerful are most importantly, the mainstream media, academia and the entertainment industry that are predominantly—indeed in most cases—overwhelming left- liberal.
Similarly, in religious liberty, left-liberals want to restrict the capacity of religious organizations to project their views, as reflected, for instance, in their opposition to school vouchers available to religious schools. It is true that preventing religious schools from using vouchers treats all religions equally but it privileges a secular civic life. A government school can and frequently does have a secular creed that is some mixture of environmentalism and a particular take on the concept of state mandated diversity. It is much more hospitable to reinforcing a state-centered view of the world than a religious school.
A second point of comparison is the hostility of left-liberals to the rights of corporations.
Linda Greenhouse ‘s column yesterday and my post the day before are in agreement on one thing. As she puts it, “The McCutcheon decision is a powerful testament to the extent to which the free speech claim has, in the hands of the current court, become an engine of deregulation.” But she deplores the results. I applaud them.
My reasons for applause are simple: the First Amendment is an engine for the deregulation of political expression. That’s its essence. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Court has made clear for decades that speech is to be interpreted broadly to include all forms of expression, including burning a flag or dancing in the nude. Like most civil libertarians, Ms. Greenhouse is presumably fine with these decision. Is a contribution to a political candidate less a form of expression than those actions? In McCutcheon the Court is just applying neutral principles in applying strict scrutiny to government attempts to interfere with expression.
The First Amendment is a free, not equal speech provision. It is no respecter of persons. It does not matter that rich people are often engaged in this kind of expression or that it unpopular with some people, particularly the incumbents that passed the law limiting donations and may be unseated by challengers who receive too many of them.
The Supreme Court’s analysis in McCutcheon v. FEC, its recent campaign finance decision, is even more important than its result. The holding of the case was to strike down so-called aggregate limits on donations to federal candidates. Under the invalidated law there was a ceiling on total contributions of $48, 600 for candidates running for federal office and $74,000 for other political committees. After McCutcheon, candidates are still limited to donating $2, 600 to a candidate but can give to as many candidates as they choose.
But it is the reasoning, not only the result, that is crucial to protecting our liberty, because it portends further deregulation of p0litical expression in elections. From the very first sentence, Chief Justice Roberts makes clear that general First Amendment principles are at stake in the case. Throughout the opinion he refers to cases that have nothing to do with campaign finance regulation but famously protect individual expression against the majority will, like Cohen v. Virginia, the case that protected the ability of a protestor calling for an anatomical impossibility to be performed on the nation’s selective service system. For the Chief Justice, those who want to express themselves are the new dissidents who must be protected from the wrath of legislators egged on by majority passion (and their own interest in protecting their incumbency). People who want to participate in campaigns to support a message or a candidate are not different in kind from those who speak in a vulgar manner or a burn a flag. His is a frontal challenge left-liberals’ support for the regulation of political campaigns, showing that they exercise only high double standards in standing up for free speech rights only when it suits their long-term objectives.
Appealing to ordinary First Amendment principles is essential to winning the debate over campaign finance, because advocates of regulation cannot succeed unless they forsake the neutral principles that are free expression’s best guarantees.