March 5, 2012
ObamaCare and Contraceptives: The Free Exercise Zero-Sum GameBy Edward H. Stewart, Jr.
If conservatives want to win the fight over the abortion pill mandate, they'd better know what its rules are and how progressives exploit them. The Supreme Court wrote the rules, but they have nothing to do with constitutionality or the First Amendment. Forget that, and you'll lose the argument by wrangling over the Framers' intent while Obama chants his women's rights mantra.
Progressives have long rejected the Constitution's authority. Preoccupation with constitutionality, Felix Frankfurter opined in his Dennis concurrence, "is preoccupation with a false value"[i]. And about two decades later, in Flast v. Cohen, Chief Justice Earl Warren explained what was taking its place, and why.
Warren wanted taxpayers to be able to bring establishment-clause complaints without having to show injury. There was one obstacle. The ban against taxpayer standing is grounded squarely on the case-or-controversy rule in Article III. And Frothingham v. Mellon was a longstanding precedent for enforcing the ban[ii]. So what was Warren to do?
To the extent that Frothingham has been viewed as resting on policy considerations, it has been criticized as depending on assumptions not consistent with modern conditions.[iii]
The Court, under Warren, "modernized" the Constitution by demoting an outdated principle (the requirement of showing immediate personal injury). The majority's holding in Flast trashed the separation of powers. The decision opened the door for judge-imposed "policy considerations." Progressives could split hairs on a case-by-case basis to create carve-outs for favored constituencies. Identity politics in robes.
Like Flast, ObamaCare's mandate is not about religion; it's about power. If the Court could expand its jurisdiction by showing disdain for constitutionality, why not the administration? And that's exactly what Obama's doing with out-of-control agencies.
What does that have to do with false premises behind the HHS rule on contraception? Well, a lot, because by weakening the ban against involving itself in political questions, the Court was also reshaping our concept of religious liberty.
Let's begin with coercion. In the 1963 school prayer case Abington v. Schempp, the Court said that "a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended"[iv]. The Court also set limits on free exercise, saying it "has never meant that a majority could use the machinery of the State to practice its beliefs"[v].
Framing the argument in those terms is the central pillar of progressive dogma. Not only can any taxpayer sue, but not having to prove coercion eliminates the need to present evidence. The government action has been isolated from its real-world effect, and the door opened to decades of rank speculation about what forms religious coercion might take and who might apply them. William Brennan's concurrence, for example, compares Christian schoolchildren with McCarthyite witch-hunters pressuring non-Christian classmates to swear a loyalty oath. Why? To deflect the criticism that there was no record to work from because no evidence of coercion had been presented in district court[vi].
But it gets much worse. Progressives ran with the notion that since only "a majority" can "use the machinery of the State to practice its beliefs," the majority is always the aggressor, and only minority rights can be threatened. That's patently false when an activist judiciary -- or a rogue administration -- is playing identity politics. Think affirmative action, disparate impact, or ObamaCare's individual mandate.
It's a very short step from Schempp to agitprop demonizing Catholics as aggressors trampling a woman's "right" to contraceptives. Typical is "Why the Birth Control Mandate Makes Sense," by Jeanne Shaheen, Barbara Boxer, and Patty Murray[vii]. The senators flatly deny that forcing a Catholic to violate her moral conscience threatens her religious freedom, dismissing the blowback as unnamed forces waging "an aggressive and misleading campaign to deny this benefit to women." The senators proclaim that they are "very glad that the president has stood up to these forces while protecting religious freedom on all sides."
No, not "on all sides," since only one side's rights can be threatened. The senators are describing a zero-sum game where the patsy is labeled "aggressor" and only the "protector" can be allowed to win. Their inspiration is progressive establishment-clause dogma.
Sandra Day O'Connor let the cat out of the bag when she wrote that the Supreme Court's role isn't neutrality, but "identifying workable limits to the government's license to promote the free exercise of religion"[viii]. Like Brennan, O'Connor plugs Schempp's coercion gap in a way that is profoundly hostile to religion. Religious belief, not government, is the source of coercion, and religious expression its instrument. According to O'Connor, government "establishes" religion not by designating a national church or levying a tax, but by enabling the religious practitioner to trample others' rights.
This is dangerous stuff. Mislabeling the individual's right of free exercise as government's license to police religious practices effectively denies the religious individual free exercise protection, and whatever "rights" the non-religious gain clearly come at the cost of imposing "limits" on religious expression. For what? Government promotion of free exercise is a contradiction in terms because it implies coercion of the religious. Welcome to O'Connor's looking-glass world.
"The crucial question is whether the State has conveyed or attempted to convey" a message endorsing religion[ix]. Heads I win, tails you lose. Once the assumption is made that religious expression threatens "rights," purpose becomes indistinguishable from effect, and all other considerations become irrelevant. "Conveyed" points to a real-world effect, "attempted to convey" points to purpose in the absence of any such effect, and the structures are parallel. If no evidence of a real-world injury exists, speculation fills the gap, and an imaginary injury is treated as if it were real.
Think not? Consider the Mojave Cross. The district court first ruled against displaying the cross on federal land because of its effect on Frank Buono. Congress eliminated that effect by ordering the title transferred to a private owner. But the court blocked the swap, insisting the cross must now go because Congress' purpose for saving it sent a message of endorsement that just had to injure someone[x].
Now back to the agitprop behind the abortion pill rule. Obama insists that the Catholic Church, not HHS, is the aggressor, that it can suffer no harm, and that it is denying "women" access to contraceptives despite the fact that the women most affected chose to work for the Church but are nonetheless free to "access" contraceptives that are legal and readily available, often at no cost.
In the spirit of Saul Alinsky, every one of these administration talking points is false. Ignore the Framers' intent, and they would still be false. Replace Catholics with Protestants or Republicans, and they would still be false. Obama's phony offer of a "compromise" doesn't change the fact that they are false.
These lies are all too familiar. When the "victims" are shareholders and Obama's objective is stifling corporate campaign speech, the pattern is the same. Just as it's the same when he pillories the rich for trampling the poor's "right" to affluence by not redistributing their wealth fast enough.
Conservatives, connect the dots. Same zero-sum game, same "aggressor," same violation of imaginary rights, same "rescue" by government intervention. And a fight that's always about power.
[i] Dennis v. United States, 341 U.S. 494 (1951), 555.
[iii] Flast v. Cohen, 392 U.S. 83 (1968), 94.
[iv] Abington School District v. Schempp, 374 U.S. 203 (1963), 223.
[v] Id., 226
[vi] See Brennan's concurrence, 374 U.S. 203, 288-293, and Potter Stewart's dissent, 374 U.S. 203, 319. Brennan's argument is an advisory opinion that I call his Free Exercise Detour. Brennan draws a false analogy between caving to peer pressure from Christian classmates and swearing a loyalty oath, claiming that since imposing such a burden violates free exercise, no proof that such coercion has actually occurred is necessary.
[vii] Wall Street Journal, February 8, 2012, A15
[viii] Wallace v. Jaffree, O'Connor, J, concurring, 472 US 38 (1985), 83.
[ix] Id., 73.
[x] See Salazar v. Buono, 559 U. S. __________ (2010), slip opinion at 10-11 for an attempt to fix this problem. The Supreme Court held that by switching from effect to purpose, the "District Court did not engage in the appropriate inquiry."
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