August 13, 2013
"Religious Liberty and the Culture Wars"
That's the title of a new piece by Doug Laycock, forthcoming in the University of Illinois Law Review, downloadable here. The abstract:
Religious liberty has become much more controversial in recent years. A principal reason is deep disagreements over sexual morality. On abortion, gay rights, same-sex marriage, and contraception, conservative religious leaders condemn as grave evils what other Americans view as fundamental human rights. Somewhat hidden in the battles over permitting abortion or same-sex marriage lie religious liberty issues about exempting conscientious objectors from facilitating abortions or same-sex marriages. Banning contraception is no longer a live issue; there, religious liberty is the primary issue. These culture-war issues are turning many Americans towards a very narrow understanding of religious liberty, and generating arguments that threaten religious liberty more broadly.
I argue that we can and should protect the liberty of both sides in the culture wars, and that conservative churches would be well advised to concede the liberty of the other side, including on same-sex marriage, and concentrate on defending their own liberty as conscientious objectors.
I offer a detailed analysis of the recently published Final Rules seeking to insulate objecting religious institutions from having to “contract, arrange, pay, or refer for” contraception. These Rules offer very substantial protection to religious institutions, and they are likely to satisfy most judges. Religious institutions should claim victory or perhaps seek to negotiate minor adjustments. The cases of for-profit employers remain to be litigated. Those cases are more difficult, but it is at least clear that Congress understood the Religious Freedom Restoration Act to apply to for-profit employers.
Prof. Laycock's article has a lot of good analysis, and is very well footnoted. The main flaw is a failure to be consistent with his own proposal of "live-and-let-live solutions." This failure displays the achilles' heel of his overal theory. It is illustrated by the birth control issue. As Prof. Laycock points out, this issue already saw a "live-and-let-live solution": after its legalization in 1965, moral opposition continued but there was and is no serious effort to combat legalization: "From 1965 to 2011, the situation with respect to contraception nicely illustrated the live-and-let-live solution to such a deep moral disagreement." Contraception was illegal, and there was no mandate for dissenters to help provide it (state mandates didn't start until the late 1990s, are patchwork, and had some workarounds, though they also illustrate the breakdown I am about to describe). Under Prof. Laycock's theory, this live-and-let-live situation regarding birth control should have prevented the crisis we are in now. It did not. Even worse, after the birth-control mandate side has now insisted that live-and-let-live is no longer acceptable, Prof. Laycock himself seems, though the article isn't entirely clear, to be reluctantly yeilding to them, rather than strongly insisting on the live-and-let-live sitatuon. He says that for the final rules, under which non-profit religious groups must be connected to contraceptive coverage and individuals in business are fully coerced by the mandate, "the bishops would be well advised to accept a compromise that gives them reasonable insulation from the provision of contraceptives, even if that insulation is not air tight." Prof. Laycock doesn't state clearly whether the religious side of this issue should surrender on both the non-profit arrangement and the individual-business arrangement, or just the former. Different parts of his article do lament and critique the mandate. But at minimum he does not state clearly, especially where he sums the situation up, that the mandate against people in business is an absolutely unacceptable violation of the previous live-and-let-live situation. And this is what undercuts Prof. Laycock's entire proposal. If a live-and-let-live "peace treaty" were possible, it would be meaningless if its advocates did not draw a bright line to insist on protecting *the treaty itself*. Live-and-let-live is not even plausible as an idea if one side is able to nullify the treaty and insist on a new "compromise," taking away some of the live-and-let-live liberty that the other side possessed, and then have the treaty's negotiators say that this new compromise should be accepted to some degree. Any willingness to accept encroachment into a live-and-let-live situation demonstrates, intentionally or not, that if religious conservatives adopted a similar approach towards marriage or any other issue, they would simply lose that liberty a few years later, and not even the treaty's negotiators would forcefully cry foul. The Obamacare mandate on abortifacients and birth control against religious objections is itself, entirely, a violation of live-and-let-live. No one proposing live-and-let-live solutions on other sexual morality issues can counsel acceptance of that mandate and still have their proposal be considered a serious option to religious conservatives. Religious conservatives don't think any deal would be honored. The birth control mandate, and the counsel of moderates that it should be accepted so varying degrees, vindicates their suspicion.
Posted by: Matt Bowman | Aug 13, 2013 11:38:30 AM
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