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In Obama Era, Social Conservatives Have One Winning Hand at Supreme Court


Jeffrey Bruno

Mark Stricherz - published on 02/19/15

Focus on religious liberty has yielded positive results

WASHINGTON – In the Obama era, social conservatives have been persistent critics of the Supreme Court for striking down the Defense of Marriage Act and upholding the Affordable Care Act. But with new culture war cases in the dockets of lower courts, some House leaders want to publicize that the Supreme Court is more of a friend than a foe on religious liberty claims.

Last Friday, a House Judiciary subcommittee held an oversight hearing on two Clinton-era religious freedom laws. Rep. Bob Goodlatte, R-Va., encouraged social conservatives to view them as relevant today.  

“(W)hile religious liberty remains threatened, I am nevertheless energized by recent Supreme Court cases in favor of religious plaintiffs,” Goodlatte, chairman of the House Committee on the Judiciary, said. “These cases indicate that religious protections passed by Congress are working … and provide individuals with practical and meaningful ways to challenge infringements on their religious beliefs in court.”

In Burwell v. Hobby Lobby, last summer the Supreme Court ruled that Hobby Lobby, a craft-store chain, did not need to provide health insurance coverage for contraceptive devices its owners considered abortifacients or drugs that resulted in the death of a human embryo. In Holt v. Hobbs, last month the Supreme Court ruled that a Muslim inmate did not need to shave his beard as Arkansas prison officials insisted he do because his whiskers were in accord with his faith. Attorneys for Hobby Lobby appealed to the Religious Freedom Restoration Act of 1993, while lawyers for the inmate appealed to Religious Land Use and Institutionalized Persons Act of 2000.

One liberal witness acknowledged that Hobby Lobby represented a victory for social conservatives but said the ruling came at a cost. Nelson Tebbe, a professor of law at Brooklyn Law School, said the high court shifted the burden of proof for harm from employers to employees. “These employees may well suffer irreparable harm, including unwanted pregnancies,” Tebbe said.

At the time Congress approved the two religious-freedom bills, cultural conservatives and cultural progressives supported broad interpretations of religious liberty claims; Senators Orrin Hatch of Utah and Ted Kennedy of Massachusetts sponsored the bill to support prisoners.

But the bipartisan harmony is over. Rep. Jerrold Nadler, D-N.Y., said social conservatives “have punctured a hole in the Constitution” by insisting that some forms of contraception don’t further public health. Rep. Trent Franks, R-Ariz., blamed President Obama. “This president has done something that no president has done and that’s rip apart a coalition that had been there for religious liberty,” Franks told Aleteia in an interview after the hearing.

As lawmakers on Capitol Hill disagreed on the causes of the dispute, state governments and federal judges battled with religious groups on the specifics. In Oregon, last week the state department of labor and industries ruled that a business would be required to pay a fine of as much as $150,000 for refusing to make a cake for the wedding of a gay couple. Also, last week a federal circuit court ruled that one Christian college and two Catholic dioceses could not claim a religious exemption for getting out of Obamacare’s contraception mandate.

Witnesses differed on the implications of the Hobby Lobby ruling. Ron DeSantis, R-Fla., asked Tebbe if he thought religious schools would need to provide coverage for partial-birth abortion. “I’m reluctant to speak to that question because I’m not prepared for it, but clearly these organizations have to let gay couples adopt,” Tebbe said.

Still, cultural conservatives expressed more enthusiasm for religious liberty claims than cultural progressives. Craig Parshall, special counsel for the American Center for Law and Justice, said “the language of the Religious Restoration Act should not be diminished. Indeed, it should be expanded.”

Mark Stricherzcovers Washington for Aleteia. He is the author of Why the Democrats are Blue (Encounter Books). He invites you to follow him on Twitter at @MarkStricherz.

PoliticsReligious Freedom
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