These days news stories about social conservatives “wrestling” with gay marriage abound. True, there have been a raft of states that have recognized gay marriage. And true, the Supreme Court largely sided with gay marriage defenders. And it is true that social conservatives have been losing repeatedly. Certainly many religious people are maintaining beliefs while conceding society has made a different choice.
So I think it’s more accurate to say that, when not deflated, social conservatives are more restless than wrestling these days. What if anything can they do, and what’s the future of social conservatism?
First, liberals tend to lump abortion and gay marriage together, which ignores a very large segment of Americans who generally oppose abortion but have come to accept gay marriage. Moreover, it disregards the degree to which pro-life forces, aided in part by medical technology, have changed or held in place public opinion whereas anti-gay marriage forces are swiftly losing the argument. One place for social conservatives, then, will be continued advocacy, which has been mostly successful, to regulate abortion and move public opinion. The pro-adoption movement continues to grow, allowing conservatives to be for making couples happy and for protection of the unborn.
Second, you’ll see conservatives continue to focus on intact family units as the essential element in reducing poverty. There is sometimes a policy element (e.g. in tax reform, structuring entitlements), but often the issue is, like abortion, about changing hearts and behavior through public advocacy.
Third, you’ll continue to see, I think, more involvement on issues such as immigration, in which religious values motivate political action, just as they did in the civil rights era.
And most important, you’re going to see many more fights like the one we saw this week about the contraception mandate. The desire to escape government coercion, which sometimes takes the form of a religious accommodation, goes to the heart of social conservatives’ desire to erect a realm in which their religious beliefs can be free from government coercion. This is what makes the Hobby Lobby case so interesting.
By far the most thoughtful analysis as to why the Hobby Lobby owners should win comes from Prof. Michael McConnell. His discussion goes to the heart of religious liberty. He lays out the main issues in the case:
(1) Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?
(2) Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?
(3) Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?
(4) Has the government satisfied the least restrictive means test?
He goes on to make a compelling argument that the answer to each is no.
Hobby Lobby will experience a financial burden if it has to drop coverage and dropt employees in the exchanges because “(1) employer-provided health insurance is tax-exempt to the employee, but the compensatory increase in salary would not be; (2) the provision of insurance is tax-deductible to the employer, but payment of the tax is not; and (3) employer-based group coverage is cheaper and usually better than individual plans on the exchanges.”
Requiring employers to provide four specific drugs is hardly compelling given that Congress left all the specific requirements for coverage to Department of Health and Human Services, which in turn put out a slew of other exemptions and then went further by grandfathering in a whole raft of plans that may not have contraception coverage. Moreover, Hobby Lobby was willing to cover all but four abortion-inducing drugs.
And in this case the less restrictive alternative is obvious: “Ultimately, the government’s problem here is that it has essentially reduced its own compelling interest to a funding question: Who should pay for the contraceptive coverage the government has decided people should have? Almost by definition, where the government’s claimed interest is merely a question of who should fund something, there will always be less restrictive alternatives, because the government can always choose to fund its own priorities (which it of course does with a great many things that even the government would not claim to be compelling interests).”
The nub of the public debate, if not in the Hobby Lobby case itself, is the issue of slippery slope, or, if you will, figuring out when it’s important enough to allow religious believers to opt out of societal rules. It’s hardly a new issue since decades ago religious people obtained the right to opt out of everything from Society Security taxes to public schooling. It’s unsatisfying to answer the “How far do we go?” question with “It depends,” but that is the essence of First Amendment jurisprudence these days. Moreover, it comports with common sense: If violating a devout person’s belief would be hugely harmful (a “substantial burden” in legalese), then the law should tread gently; if the violation is slight (e.g. interacting with people whose lifestyle your religion would disapprove of), the law can be more rigorous, especially when the rights of others are implicated. That is how discrimination law has worked for generations — whether in the public or private sector.
And this, I think, is where social conservatives come in — to persuade and advocate on behalf of people of faith and to sensitize nonbelievers that we all benefit when people of faith don’t have their core beliefs trampled on, at least not without a hugely important reason. The First Amendment drafters thought so. They understood that in restricting government to respect people of faith we tame government for all of us and avoid, when possible, the unpleasant coercion that is entailed when you try to bend peoples’ will on matters that implicate deeply held convictions.
Liberals like to call social conservatives “intolerant,” but here it is social conservatives who are asking the society at large to let them operate out of step, if you will. It is an important value in a free society, namely toleration and even celebration of non-uniformity. In this social conservatives have a role, in fact a calling.