If I’m reading this Emily Bazelon essay correctly, she thinks she’s defending religious liberty, but she has a very narrow conception of what religious liberty means. Excerpts:
The common thread here is the 1993 Religious Freedom Restoration Act, which states that when the federal government makes a rule that substantially burdens someone’s free exercise of religion, it has to show a compelling government interest and use the least restrictive means to get where it wants to go. The effort in Arizona, and in other states, is to expand—dramatically—the protections in RFRA. And at the Supreme Court, Hobby Lobby and Conestoga Wood argue that RFRA allows them to refuse to provide birth control coverage to their employees. On these two fronts, religious liberty looks like a shield fundamentalists are throwing up against, well, sexual modernity. They’re not ready to accept same-sex marriage or sex without procreation, and they’re arguing that fundamentalist-owned businesses, as well as individuals and churches, shouldn’t have to.
OK, fair enough. Do they have a religious-liberty right to dissent from the Sexual Revolution in their healthcare policies, and approach to gay rights in businesses they own? Bazelon says that her fellow liberals are being too quick to disdain religious liberty. The RFRA was passed with both liberal and conservative support, in reaction to a Supreme Court decision that went against two men who had lost their jobs and rights to unemployment benefits because they had used peyote in a Native American religious ritual. Bazelon:
At the time, the ruling read as insensitive to the lack of power religious minorities have relative to the majority. “In law school, I saw Smith as a conservative decision,” Brooklyn law professor Nelson Tebbe remembered when I called him this week. “And when Congress passed RFRA in response, it was about protecting potentially persecuted minorities. But now, in an amazing shift, it’s the most powerful religious organization in the country that are invoking this law—the Catholic Church and Protestant evangelicals.”
Ah! So for Nelson Tebbe, religious liberty is good when it’s Native Americans smoking peyote, but bad when it’s Catholics and Southern Baptists doing their thing. It appears that when religious liberty advances practices or policies of which liberals approve, it should be defended, but when liberals disapprove — you know how it goes. Bazelon continues:
Tebbe is one of the authors of another brief in the Hobby Lobby case—one that I find persuasive. The brief deals with the tension in the Constitution’s dual directive about religion in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” What happens if your free exercise runs into my right not to have your religious views “established”—in other words, imposed upon me?
Hey, wait a minute! I thought “establishment of religion” meant creating a state church. Anyway, the brief by Tebbe et al. says that the Court should rule against Hobby Lobby because the state has a “compelling interest” in mandating contraceptive coverage to employees, even if a private company is run by people who believe contraception is gravely sinful (which, for the record, I do not). That “compelling interest” overrides Hobby Lobby’s RFRA claim, the argument goes. “A wave of relief hit me when I read this,” writes Bazelon.
Her argument depends on the belief that “sexual modernity,” as she calls it, is a right that matters more than a religious believer’s conscience. It’s startling. Relatively few Americans oppose contraception, but those that do generally have very strong reasons for doing so. Buying a month’s worth of birth-control pills can cost anywhere between $19 and $162, depending on where you buy them and what kind you get. In Massachusetts, Planned Parenthood sells them for $30 — that’s one dollar per day, for the Pill.
This is an unreasonable burden for employees? The government has a compelling interest in forcing private businesses to provide a service that they believe is intrinsically evil (if they’re Catholics faithful to the Church’s teaching)? Really? As I said, I don’t share the Catholic Church’s view on birth control, but I know many sincere Catholics who do, and it seems to me a grave violation of religious freedom to compel them to cooperate with this policy, especially given that the cost of providing oneself with contraception is so low.
If religious liberty is meaningful, it has to apply to people whose religion you don’t like — Catholics and Evangelicals as well as Native American followers of traditional religion. After all, as the reader who sent this Bazelon essay to me wrote, doesn’t the government have a “compelling interest” in banning peyote?
What’s really at issue here is the belief that when the Sexual Revolution clashes with religious faith, the Sexual Revolution must always win. The sexual and the secular have become sacred. As we see over and over again, for many contemporary liberals, when it comes to opposing sexual freedom, religion’s error has no rights — not even the right to be wrong.