Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, 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.


Sisk, Greg | Permalink