July 19, 2014

The Tragic Shooting Down of a Civilian Passenger Airliner

A civilian passenger plane carrying 290 passengers — men, women, and children — was shot out of the sky by an anti-aircraft missile.  The downed flight was a commercial airliner flying a route that had been approved by international aviation authorities.

All 290 passengers on the airliner died.  As the news broke, heart-breaking photos of the wreckage soon appeared in the international news media — horrific pictures of dozens of bodies of people of all ages, along with debris of personal effects.

No, I am not here describing this week’s tragic incident in Ukraine involving Malaysian Airlines Flight 17 and killing 298 people.  Instead, I am recalling the 1988 shooting down of Iran Air Flight 655 by the U.S.S. Vincennes, which resulted in a nearly identical loss of life.  Iran Air Flight 655 carrying 290 passengers had departed from Bandar Abbas International Airport and was traveling to Dubai when it was shot down by an American naval missile system over the Persian Gulf.

Iranair655shootdown

To be sure, there are differences between the 1988 Iran Air 655 incident and this week’s Malaysian Airlines Flight 17 incident.  The U.S.S. Vincennes had been attacked in the Persian Gulf by Iranian gunboats and was engaged in combat when the radar system picked up an aircraft coming toward the ship from Iran.  Notwithstanding the exigent circumstances, however, the difference between a slow-moving Airbus and a supersonic military fighter jet should have been apparent, and the radar crew failed to recognize that the Iran Air flight was climbing at the time and not on an attack path.  The United States did take immediate responsibility for the downing of the Iran Air flight and paid compensation to the families of the victims (although the federal government successfully invoked sovereign immunity to defeat tort lawsuits filed in United States courts on behalf of the survivors).

But, at the end of each sad day, nearly 300 innocent men, women, and children died horribly because an insufficiently trained military unit acted rashly on the basis of limited information.  Each was the result of an atrocious error by an irresponsible military force.  The captain of another U.S. ship present at the time in the Persian Gulf said that the shooting down of Iran Air 655 “marked the horrifying climax” to a pattern of over-aggressive behavior by the commandor of the Vincennes.

Importantly, the lesson is not a new one and this week's tragic loss of Malaysian Airlines Flight 17 shows that it has not yet been learned around the world.  Nor was the Iran Air 655 tragedy in 1988 the only other such episode.  In 2001, Ukraine military shot down a Russian passenger plane, and in 1983, a Soviet fighter jet destroyed Korean Airlines Flight 007.

We need not make the error of characterizing the Malaysian Airlines Flight 17 episode as “terrorism” to insist that those responsible be held accountable for this episode and that use of military force must be carefully constrained to protect civilians.  A “terrorist” deliberately targets civilian populations to provoke fear and chaos in the populace.  The intercepted communications between Russian military advisors and pro-Russian separatists in eastern Ukraine make plain that they thought they were shooting down a Ukrainan military transport plane and were shocked to discover that the downed plane was a civilian aircraft, wondering aloud why a civilian airliner was flying in a war zone.  Nonetheless, we can rightly deplore this episode as involving criminal negligence—perhaps even the level of recklessness that would qualify as manslaughter under Anglo-American definition of homicide.

A responsible nation should never entrust a military system capable of such mass destruction of innocent life to other than a carefully trained team of regular military professionals and even then should insist that every precaution be in place and hesitancy demanded before such a system is employed.  Given that the American military has not repeated that episode in the last quarter-century, that immediate lesson may have been learned in the aftermath of the U.S.S. Vincennes.  Today, Russia should immediately withdraw such weapons systems from the rag-tag bunch of militias and criminal gangs that Russia has incited to violence in eastern Ukraine.

We live in a broken world.  A violent response to frustrations, even if purportedly limited, too often explodes into far greater atrocities and much greater loss of life than anyone intended at the outset.  Those of us who believe that international responsibilities do sometimes call for use of American military force nonetheless should be sobered by an episode such as this and be reminded that our own military too has made such unconscionable mistakes in the past.

Let us all continue to pray for a world in which not only innocents traveling high in the skies but all people may know peace and personal safety. And let us today hold in our hearts and prayers the victims of Malaysian Airlines Flight 17 and their families, including Sacred Heart Sister Philomene Tiernan, a member of the staff at Kincoppal-Rose Bay School, a Catholic girls' school in Sydney who lost her life on that flight, while remembering as well the souls lost 25 years ago in the Persian Gulf on Iran Air 655.

Posted by Greg Sisk on July 19, 2014 at 05:09 PM in Sisk, Greg | Permalink

July 09, 2014

Lyman Johnson on Hobby Lobby: A Landmark Corporate Law Decision

My colleague, Lyman Johnson, has a post today on Business Law Prof titled "Hobby Lobby, a Landmark Corporate Law Decision."  Herewith a sample: Johnsonlp

As one who for decades has favored a vision of corporations (and corporate law) as being utterly conducive to serving broad social purposes -- as freely determined, of course, by the appropriate corporate decisionmakers -- and as one who supported Hobby Lobby, I found it odd to see these companies opposed by so many corporate progressives. . . .

To those on the right who favored Hobby Lobby (me) but who also favor the now-discredited position that corporate law requires profit maximizing (not me) take note:  you won the battle on religious freedom but to do so you had to suffer a major setback on corporate purpose.

 

Posted by Greg Sisk on July 9, 2014 at 12:51 PM in Sisk, Greg | Permalink

July 07, 2014

The Pendulum Swings: Substantial Majority Opposes Big-Government Solutions

As I blogged back in April (here), the centuries-old American debate about the right size and proper role of government will carry forward for decades into the future, despite occasional nonsense from pundits that this or that political win for this or that set of politicians means that this or that side of the political spectrum would be forever banished into the political wilderness.

Those of us on the Mirror of Justice who are motivated in our public activities by faith and who share a Catholic understanding of the human person in community vary greatly on our evaluation of the wisdom of and the acceptable extent to central government programs to advance the common good.  So too the general American public remains divided and insists on preventing one or the other viewpoint from dominating the political landscape for too long.

Pendulum2When President Obama was first elected in 2008, together with large Democratic majorities in both houses of Congress, many believed the stage was set for a new progressive era as conservative views about limited government receded into the past.  But, as shown by the 2010 congressional elections and President Obama's thin 51-percent reelection, the charisma of liberty and skepticism about the competence (and moral legitimacy) of government mandates has sent the pendulum swinging hard to the other side yet again.  As Marc Theissen writes in today's Washington Post:

"According to a December Gallup poll, the number of people who say that 'big government' is the greatest threat to the country has risen from 55 percent when Obama took office to 72 percent today — the highest that number has ever been in 50 years of polling. For the next quarter century, whenever a liberal politician proposes some new, big-government program, all conservatives will have to say to discredit it is: 'It’s just another Obamacare.'”

Of course, as I suggested earlier, this too shall pass — although the clunky implementation of Obamacare will have lasting implications (for at least a couple of election cycles).  Even if Republicans win big this fall (and I'm still dubious that the huge shift of six Senate seats can be accomplished), and even if Republicans should take the White House again(an even bigger "if"), they too will make mistakes and overreach.  At some point in the future, the pendulum will sweep back in the other direction.

While the swing of the pendulum will never stop altogether, Catholic public thinkers might be able to escape the back-and-forth by looking for ways to transcend old political divisions and trying to find ways to more "smartly" join governmental policies and public environments with social and religious organizations to enhance human thriving.  By doing so, we may not only make the world (or at least our neighborhood) better but also strengthen the case once again for religious freedom and the plurality of initiatives that such freedom brings.

Posted by Greg Sisk on July 7, 2014 at 04:40 PM in Sisk, Greg | Permalink

July 02, 2014

Abortion: A "Jurisprudential Black Hole" Distorting the Law for Four Decades

In the separate concurrence in McCullen v. Coakley, Justice Scalia joined by Justices Kennedy and Thomas, wrote:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.

As many commentators, both here on the Mirror of Justice and elsewhere have written, the political divide on the Hobby Lobby case illustrates what Paul Horwitz calls “the collapse of a national consensus on a key element of religious liberty: accommodation.”  Here too, abortion or “reproductive rights” have been central to creating that fault line between progressives and conservatives on religious liberty.

All of this can be traced back to the horrific error made in Roe v. Wade more than forty years ago.

Black_Hole_Milkyway

In words parallel to the McCullen concurrence, I had this to say several years ago about Justice Blackmun’s jurisprudence:

Nor was the distorting effect of Justice Blackmun’s preoccupation with abortion and the Roe decision manifested only on the subject of the basis, definition, scope, and precedential preservation of the abortion right. As a jurisprudential black hole that drew in and deformed everything that came near its wandering path through spacetime, Roe’s gravitational pull collapsed Justice Blackmun’s approach to every area of law into a pro-abortion singularity including questions of standing to sue, standards of appellate review, and freedom of expression. Justice Blackmun decided every question on the periphery of the abortion controversy in the manner that most aggressively promoted ever-expanding abortion rights while simultaneously contracting the rights of those who protested abortion and the power of the states to restrain the abortion license.

Sadly, the reckless and destructive path of Roe v. Wade through the American legal landscape is likely to continue.

Posted by Greg Sisk on July 2, 2014 at 08:34 PM in Sisk, Greg | Permalink

June 24, 2014

Neglect of Foreign Policy is Never Benign: A Lesson From Iraq

On the Mirror of Justice, we will never reach common ground on whether the invasion of Iraq under President George W. Bush was a terrible mistake or a difficult necessity.  We will not agree about whether the exit of troops from Iraq according to a timetable set by President Barack Obama was a welcome end to combat (for Americans anyway) or a reckless step that risked reversal of any progress that had been achieved in that country.  And we certainly will not reach anything approaching a consensus about what the United States should do now, if anything, by way of military, diplomatic, and international measures, while more and more of Iraq falls under the dominion of brutal terrorists.

Iraq-CIA_WFB_MapLet us, however, pause for a moment in our debates about general Iraq policy in the past and specific policy responses to the current crisis.  Surely as Catholic thinkers, we can jointly reaffirm that benign neglect in foreign policy is not an option.  Indeed, neglect is never truly benign.

Yes, we will continue to disagree among ourselves on what form of engagement is most consistent with our values and most prudential in operation.  But we can and should endorse affirmative, meaningful, and continuous engagement by the United States in some way with the rest of the world, most definitively including troubled regions.  As a matter of national self-interest, dedicated attention to events beyond our borders is crucial.  But it is also demanded by our moral commitment to the greater good and to the dignity of every person across the globe.

Those of us privileged to participate on the Mirror of Justice are all over the map on questions of foreign policy.  We hold a wide range of views on whether and when the United States should intervene with military power in troubled regions around the world.  We do not share a common belief in the wisdom or efficacy of international institutions on matters of world and regional security.

But I believe I can say with confidence that none of us advocates a withdrawal into isolationism or would accept an “America First” attitude, in which we would avert our eyes to the suffering of those afflicted by unrest or oppression in faraway places.  “Live and Let Die” was a catchy title for a James Bond film (and the accompanying Paul McCartney song).  Catholic concepts of public responsibility and human dignity leave no room for such abdication.

Now Barack Obama is hardly the first President to appreciate that foreign affairs do not top the list of concerns for most Americans, who will always put bread-and-butter issues first (for good or ill).  And seldom do events overseas prove to be decisive in American elections.  While public dissatisfaction with President George W. Bush’s handling of the war in Iraq played a minor role in President Obama’s election victory in 2008, the financial crisis and economic collapse were the deciding factors.  As the 2012 campaign demonstrated, the Obama team understood that domestic matters usually will lead in political calculations.  Moreover, then-state-Senator Obama had consistently opposed the war in the Iraq and called for early withdrawal, an opposition that was a more significant element in his nomination victory over Hillary Clinton.

In sum, President Obama’s “eager[ness] to put Iraq in America’s rearview mirror,” as Peter Beinart puts it, was understandable.

Fatigue, however, is not a policy.  Believing that a particular policy of engagement was a mistake does not justify substituting a new policy of non-engagement.  While weariness about a nagging problem naturally leads to avoidance, disregard usually proves counterproductive or even dangerous.  More often than not, we'll find the ignored problem thrust back into our faces, at a most inopportune time and more bothersome than before.

As Peter Beinart explains in a pointed but well-balanced analysis in The Atlantic today (here), President Obama has largely ignored Iraq, not only in military terms but also in diplomatic and other ways.  Beyond withdrawal of troops, he has been delinquent in setting and energetically pursuing a positive Iraq policy.  Importantly, the issue is not whether the policy is right but whether there really was any policy at all.  Those responsible for foreign policy within the administration, and especially those in the diplomatic corps, have warned repeatedly that indifference and diplomatic apathy could bring deterioration in Iraq.  But to do something more concerted would have “meant investing time and energy in Iraq, a country [the Obama Administration] desperately wanted to pivot away from.”  And so we arrived where we are today.

The unraveling situation in Iraq proves once again that neglecting troubles is likely to produce the opposite of what we desire — a crisis that cannot be ignored.  And if the unfolding human tragedy were not enough to demand our attention, the rise in power and resources of an organized terrorist bloc is unlikely to be confined to the region of Syria and Iraq.  If we were to suffer another horrific terrorist attack on American soil, traced back to the terrorist forces rising in Iraq, a future President may have to consider sending American troops back into the deserts of Mesopatamia.  Let us pray that day does not come.

Again, like the American people generally, the Mirror of Justice community remains sharply divided on questions about the wisdom of military policies inIraq under the last two administrations.  But that disagreement should not overshadow an agreement on the need for vigilance and perseverance, whatever may be the policy formulation.  We surely have learned again the lesson that withdrawal and inattention leave us in a world of hurt.  At the very least, let us hope the lesson of neglect in foreign policy learned in Iraq does not come too late for the future of Afghanistan.

Posted by Greg Sisk on June 24, 2014 at 08:22 PM in Sisk, Greg | Permalink

June 14, 2014

First Novel Launch: Marital Privilege by Greg Sisk

As regular readers of Mirror of Justice might recall, over the past couple of years, I’ve tried my hand at something rather different -– writing a novel.  My first novel, Marital Privilege, has just been published by North Star Press.

Marital_Privilege_front_cover_1024x1024The lead character is a law professor, and, while I should warn readers that the story begins with tragedy, the novel has themes of law, faith, and hope in the middle of tragedy.  More information about the novel can be found here.

While I will post up something more about the novel in coming days, I wanted to let Mirror of Justice readers know about the launch party if you just happen to be in the Twin Cities next week.  You are all welcome at the publication/launch party on Wednesday, June 18, from 4:30 to 6:00 p.m. at the University of St. Thomas School of Law in downtown Minneapolis (on the fourth floor in the faculty lounge).  At the party, the novel will be available through a representative of the University of St. Thomas Bookstore.  (The novel is also available at Amazon.)

If you think you might come, it would help to know so that we can be sure to have enough food and beverages –- and copies of the novel –- on hand.

Greg Sisk

Posted by Greg Sisk on June 14, 2014 at 12:11 PM in Sisk, Greg | Permalink

June 09, 2014

"The Bluest State": A Case Study in Progressive Political Policies

Despite the occasional snarky comment (from both sides), thoughtful public citizens of Catholic faith from both sides of the political spectrum earnestly desire a society in which people thrive, economically, socially, and religiously.  We all want to see children enjoying a quality education.  We all want to see young men and women of all races and from all backgrounds have an equal opportunity to succeed in life.  We all want to see the unfortunate have access to housing, nutrition, and health care.

From the most part, what divides us are not first principles but a disagreement as to what works.  (I say, "for the most part," as I do think there is some distance between the left and right on the independent value of freedom of choice -- that is, a freedom from even the well-intentioned directives of government.)  Or, to put it in terms of Catholic teaching, the primary question is one of prudential considerations.  And that, in turn, depends largely on evidence about how policies fare when translated into the real world.

Aaron Renn, an urban analyst, writes in City Journal about Rhodes Island as "The Bluest State."  As Renn describes it, "Rhode Island has the full complement of blue-model orthodoxy: high taxes, high social-services spending, powerful unions, and suffocating regulation."  And the result?   Rhode_Island_Locator_Map

Small wonder that Rhode Island scores poorly in most business-climate surveys—47th in the Small Business Survival Index and 46th in the Tax Foundation’s rankings of business-tax climate.

Its blue-state enthusiasms have done the state serious damage. Depending on the month, Rhode Island has either the worst or second-worst unemployment rate in the nation: 9.3 percent, according to the latest Bureau of Labor Statistics figures. Since 2000, the state has lost 2.5 percent of its jobs, and what jobs it has created are mostly low-paying. The job situation is so dire that entire local economies have become dominated by the benefits-payment cycle. In Woonsocket, for example, one-third of residents are on food stamps.

On top of this, real incomes have remained "stagnant for decades" and housing is "prohibitively expensive."

Renn's prescription?

Rhode Island has to reduce the size of its government—paring back taxes, spending, and regulation, and doing so over the long haul until it has a fiscally sustainable system that doesn’t strangle its economy. And somehow, the state’s leaders and residents need to rethink their views on development and free enterprise.

You can read the full article here.

Posted by Greg Sisk on June 9, 2014 at 06:12 PM in Sisk, Greg | Permalink

May 27, 2014

The Ukraine Conflict and the Post-War History of Eastern Europe

With all of the attention focused on Ukraine and its resistance to renewed Russian imperialism, Mirror of Justice readers will be among the first to place this latest event into the context of history.  Indeed, even before the Iron Curtain had fallen across the rest of Eastern Europe after World War II, Ukraine had already been the site of unimaginable suffering under Russian (Soviet) rule.  One of the greatest atrocities in history was Stalin’s deliberate imposition of famine in the 1930s to force collectivism in agriculture, with the greatest loss of life suffered in Ukraine – estimated at about 3.3 million people.

The fearful resonance of recent events in Ukraine throughout Eastern Europe is not surprising, as memories linger of the devastation delivered by Soviet Russia to the economies, civil institutions, culture, and faith of formerly independent nations in the region.  We often forget today that pre-war Eastern Europe was by and large a prosperous region with economic infrastructure, national productivity, and cultural strengths that rivaled or exceeded that of Western Europe.  Four decades of Soviet Russian oppression -- and the deleterious political ideology of communism and the failed economic policy of collectivism -- drained that economic strength and corroded the cultural, social, and religious fabric of a multitude of peoples.

For those wishing to further immerse themselves into the twentieth century historical background that remains indispensable for understanding the current conflict in Ukraine and surrouding nations, I highly recommend the book, Iron Curtain: The Crushing of Eastern Europe, 1944-1956, by Pulitzer Prize winning historian and Washington Post columnist Anne Applebaum.

Of particular interest to Mirror of Justice readers, in a passage that runs in the hardcover edition from pages 256-274, Applebaum addresses the role of the Catholic Church in Eastern Europe and the inevitable clash between the Church and State that followed the invasion of the Red Army from Russia.  Communists “instinctively hated and feared church leaders,” not only because of their ideological atheism but because they appreciated that “[r]eligious leaders were a source of alternative moral and spiritual authority,” as well as independent financial resources and connections to the rest of the world.

Posted by Greg Sisk on May 27, 2014 at 05:14 PM in Sisk, Greg | Permalink

May 24, 2014

Political (and legal) humility

George Will's column today begins with this:

All modern presidents of both parties have been too much with us. Talking incessantly, they have put politics unhealthily at the center of America’s consciousness. Promising promiscuously, they have exaggerated government’s proper scope and actual competence, making the public perpetually disappointed and surly. Inflating executive power, they have severed it from constitutional constraints.

The reminder of the limited role and efficacy of government, politics, and law is especially important for those of us who live and work in the legal academy.  Law school denizens often presume too much expertise in reorganizing society by legal compulsion to achieve preferred social goals.  And the law professoriate tends to ignore the possibility of collateral consequences by such legal restructuring of the lives and businesses of our fellow citizens, the most powerful of which is a withdrawal of freedom and a weakening of private associations (or at least those associations that do not follow the government line).

In most respects, the thriving and happiness on a day to day basis of the people we know and love -- and should seek to serve -- turns much more on what happens in the neighborhood, the school community, the parish congregation, and the family, than on the ambitions, agendas, and pretenses of politicians and their legal advisors in some distant capital.

And, thanks be to God, that is how it should be in a free society.

Posted by Greg Sisk on May 24, 2014 at 02:52 PM in Sisk, Greg | Permalink

April 15, 2014

The Spirited Debate About the Role of Government and Religious Liberty Will Continue Well into the Future

According to the pundits, the Republican Party is destined to increase its majority in the House of Representatives and seize control of the Senate in this year’s congressional elections.  In an ironic contrast, many of the same pundits predict that Hillary Clinton will sweep into the White House in two years.

My own prognostications, for what little they are worth, are that (1) Republicans have at best a 50-50 chance of gaining a majority in the Senate this year and (2) Hillary Clinton (assuming she runs) has a much better than 50-50 chance of winning the presidential election in 2016.  While Republicans will gain seats in the Senate this year, jumping up by six more seats (the number necessary to obtain a majority) in a single election cycle remains a daunting task.  And while Hillary Clinton’s current sky-high popularity will inevitably fall back down to earth once she becomes an actual candidate who must appeal to real voters, Republican prospects have not yet demonstrated that they could carry a national electorate.

But whatever the outcome of the 2014 and 2016 elections, don’t pay attention to those commentators who will portend that whichever party prevails will then become dominant while the other party fades into obscurity.  Someone always seems to be asserting that this or that political debate is over, which invariably proves to be wishful thinking by the side that has won a temporary victory.  If Republicans hold the House (as they will), there will be those who proclaim that Democrats are doomed to perpetual minority status in the House.  Don't believe them.  As a counter-example, James Carville insisted last Sunday on This Week that, if they lose the presidency to Hillary Clinton in 2016, the Republican Party will become “extinct.”  Nonsense.

Consider the lesson of fairly recent political history.  In January of 1989, Republicans had won their third presidential election in a row (and had won five of the last six presidential elections.)  And Republican victories in each of these presidential elections had been by large margins, frequently landslides.  (By contrast, and despite the media hype of a big victory, President Obama’s re-election in 2012 with only 51 percent of the vote was one of the lowest margins of re-election for a president in American history.)  So in 1989, did the Democratic Party become “extinct”?  Was it irrelevant that Democrats continued to hold a majority in Congress?  Moreover, in 1989, Democrats controlled 29 state legislatures (with another 12 split between the parties), and 29 governors were Democrats.  And one of those Democratic governors went on to win two terms in the White House.

Suppose that Democrats do win a third presidential election in 2016 and suppose further that the Democratic candidate wins by a larger popular vote margin than the thin Obama-re-election.  At that point, Republicans likely will remain in control of at least one house of Congress and remain robust in statehouses throughout the country.  Today, for example, Republicans control 27 state legislatures and split another 6, while having 29 governorships.  Not exactly chopped liver.

More importantly, whoever wins the 2014 and 2016 elections, key issues about the size and role of government that divide the political parties will remain highly relevant, as they always have been in American politics.  To be sure, specific issues that dominate today's political debates -- such as whether to repeal or reform Obamacare and even the rise of same-sex marriage -- may fade.  But the central questions of whether we as a people want a bigger government and, important to the readers of this blog, whether big government can be reconciled with religious liberty are not going away.

The Democratic message, especially in the Era of Obama, has been that bigger government is good for you and that Democratic politicans are better trusted to manage that bigger government.  It worked to win two presidential elections.  But how well does that message resonate today and into the future?

Even if Obamacare remains in effect in some form (although probably with major revisions), the disruption caused to so many people by the intervention of the government into health care (even as some people undoubtedly are helped by new insurance options), the blatantly false guarantee that people could keep their insurance (and keep their doctors), and the shockingly incompetent roll-out of the program will taint new “progressive” initiatives for some time to come.  And the promise that new era Democratic politicians, like President Obama and his cabinet and staff, were smarter and more talented and thus could skillfully manage broad new governmental interventions into this or that aspect of the economy has proven false (and always seemed invested with considerable hubris).  The problem is not that Democrats have done any worse than Republicans in running the government, but that anyone could presume to be able to manage such a bloated federal government spinning off new bureaucracies and regulations right and left.

If Hillary Clinton (or another Democrat) is elected president in 2016, she will find, as her husband prematurely predicted, that the “era of Big Government is over.”  To be sure, any Democratic president, having control of the Executive Branch, will be able to extend the regulatory reach of government to some extent.  But any major new governmental proposal will be haunted by the failures of Obamacare.

Of course, nothing is permanent in politics.  The damage done to progressive plans by Obamacare is not permanent.  But the next administration will be greatly constrained in initiatives by this sobering episode -- and likely will have to act in a bipartisan manner to achieve anything.

Moreover, and of special concern to those of us on the Mirror of Justice, the Obama Administration has unwisely cast the question of larger government as being in direct conflict with religious liberty.  Whether bigger government is understood as new programs (such as Obamacare with its various mandates) or as the expansion of law into more private sector settings (such as new anti-discrimination laws that override traditional religious resistance to participating with expansion of contraception, sexual licentiousness, abortion, and same-sex marriage), bigger government is increasingly seen by people of faith as a threat to religious liberty.  Indeed, one need only read the law professor blogs to confirm that religious liberty is increasingly discounted as a value by many on the liberal side (but encouragingly not by all).

To the chagrin of many progressives of faith that I know, the Obama Administration has heightened the perception that liberal government comes at the expense of religious liberty by taking rather extreme positions on these issues, including before the Supreme Court:

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Obama Administration insisted that the First Amendment provided no protection to religious organizations in choosing their own ministers, a position rejected by a unanimous Supreme Court that characterized this argument as extreme.

In the contraception/abortifacient mandate cases, the Obama Administration has argued that people of faith engaged in a for-profit corporation should be barred from even asserting a religious liberty claim.  In the pending Hobby Lobby and Conestoga Wood Specialties cases, the Court may or may not hold that a religious liberty accommodation to the mandate should be recognized.  But it appears from the oral argument that a substantial majority of the justices will reject the Obama Administration's position that a family-owned or small corporation may not even raise a religious liberty claim.

Here too, especially if the religious claimants lose in the pending cases, there are those who will argue that these were the last-gasp efforts of people of traditional faith to influence law and politics.  But those who suggest that the culture wars are over tend to be saying that social conservatives should unilaterally surrender while social liberals aggressively press their points forward.  That's not going to happen.  People of faith who also take their faith seriously into account in making political decisions will continue to account for about one-third of the electorate for the foreseeable future.  One-third does not necessarily translate into an electoral majority (as the presidential election of 2012 well demonstrated).  But it does mean that a critical mass of voters will need increasingly little persuasion to be disaffected from those who promise more government and more law, which religious believers will more and more fear as introducing yet more conflict between law and faith.

Again, none of this predicts a rising Republican majority -- or its opposite.  And the landscape is changing in many ways -- as it always does.  Still, we are likely to see a continuing see-saw between conservative and liberal leaders in government.  In sum, we will continue to have a spirited political debate about issues that truly matter.  Any pundit who suggests otherwise is not paying attention.

Posted by Greg Sisk on April 15, 2014 at 09:43 PM in Sisk, Greg | Permalink