In the Art of War, Sun Tzu observed “If you wait by the river long enough, the bodies of your enemies will float by.” To wait by that river implies an understanding of history – the key is to have the patience to do so.
The recent Hobby Lobby decision has been cast by the [liberal] media as part of the greater “war on women” as part of the Supreme Court’s ruling that closely held corporations with strong religious views need not adhere to the laws the rest of the country must. The “fight” that is currently taking place within the American court system is often viewed through a religious freedom prism with women and the LGBT community as just part of the collateral damage; however, looking at the issue from that perspective is short-sighted and distorts the bigger picture.
Religion is simply a tool to be wielded in the bigger fight, but that is not what the war is about. Nor is it about women, or even gays and lesbians. This is a fight that has been taking place for at least 80 years. A fight that most people didn’t even know was still taking place!
What is this fight? It’s the grand battle between liberalism and conservatism. The penultimate war of ideology taking place at the same pace a glacier recedes – which is why no one is paying attention.
While it is fair to acknowledge that the true roots of today’s war go back to the Civil War era, we can skip a generation or so forward to American Depression and the Franklin Delano Roosevelt administrations response to the economic crisis. Conservatives dominated American politics following the end of World War I and rode the Roaring Twenties all the way to the Great Depression. Conservative ideology, a laissez-faire approach to business rooted in small government, libertarian principles, lacked the requisite tools to wage a governmental response to the economic collapse.
Democrats, in no small part fueled by the progressive movement, campaigned on and won based on an interventionist government approach. This New Deal approach introduced several key legislative ideas that were anathemas to conservatives to include Social Security, the National Labor Relations Act, and the Revenue Act of 1935 that increased taxes on the wealthy for wealth distribution to assist the poor and homeless.
Many of the FDR administration’s efforts were fought tooth and nail by conservatives in congress, then ultimately by the conservative wing of the Supreme Court – so much so that Roosevelt attempted to reorganize the court in order to tilt it more favorably to progressive legislation. While his attempt to change the court through legislation failed, ultimately FDR would go on to nominate nine sitting justices during his tenure as President – all but ensuring the survival of the New Deal to the great consternation of conservatives.
The next swing in the battle of conservative and liberal ideology would play out during the 50’s, 60’s, and 70’s over civil rights and Lyndon Baines Johnson’s Great Society agenda. A “judicially activist” Supreme Court fired the first volley in the post World War II era with the Brown v. the Board of Education decision ending segregation in the country. Conservatives, not just southern Democrats (which despite the label were in the conservative camp), bemoaned the ruling as Federal usurpation of state’s rights.
The Civil Rights Act and the creation of Medicare under Social Security in the 60’s were additional blows to conservatism. This is not to paint conservatives as racist bigots – it is simply to acknowledge that the conservative viewpoint is to limit the level of influence the federal government has in your life and in your decisions. The notion that federal government, by law, can dictate who you must interact with in your daily commerce (whether that be racial, religious, or sexual orientation) is against the core principles of conservatives.
“Having embraced the destruction of Jim Crow and the broader cause of promoting black progress, liberals’ belief in the federal government’s plenary power facilitated their support for any measure that would, or might, promote civil rights. Conservatives opposed to racial discrimination, however, had few obvious ways to act on that belief without abandoning their long, twilight struggle to reconfine the federal government within its historically defined riverbanks after the New Deal had demolished all the levees. Mr. Perlstein portrays [Barry] Goldwater, a member of the NAACP who had fought against segregation in the Phoenix public schools while on the City Council, as anguished by the choice between a moral and a constitutional imperative confronting him in the vote on the civil rights bill.”
“In the statement explaining his vote against the 1964 Civil Rights Act Barry Goldwater said that if the people really want the federal government to undertake the tasks set out in the bill, they should amend the Constitution to give the government those powers.”
“Conservatives have spent half a century trying to overcome the suspicion that they are indifferent to black Americans’ legitimate demands, and indulgent toward people who are blatantly hostile to blacks. As a result, the party of Lincoln has become much whiter as it has become more conservative. Dwight Eisenhower got 40% of the black vote in 1956, the first presidential election after the Brown decision and the Montgomery boycott. Barry Goldwater got 6% in 1964, and in the 10 subsequent presidential elections the Republican candidate’s performance has never been more than a slight improvement on Goldwater’s. As Ta-Nehisi Coates recently argued in The Atlantic Monthly, a sizeable portion of the black electorate consists of latent conservatives “who favor hard work and moral reform over protests and government intervention.” Invariably, however, the black American who feels this way “votes Democratic, not out of any love for abortion rights or progressive taxation, but because he feels-;in fact, he knows-;that the modern-day GOP draws on the support of people who hate him.” WSJ
Conservatives mounted a pyrrhic attempt to stem the tide of advancing liberalism in 1964 using Goldwater as their standard bearer against LBJ in the presidential election, and though defeated handily, his platform resonated enough to usher in Ronald Reagan 16 years later.
While the country has been fairly divided ideologically over the last 34 years, with neither the Democrat or Republican party holding significant majorities in the house or the senate (the exception being 2010 with the passage of the Affordable Care Act as democrats controlled both houses for a brief period) , one area that conservatives have been able to make inroads in to was the composition of the Supreme Court.
Of the nine SCOTUS justices, five: Antonin Scalia (1986), Anthony Kennedy (1987), Clarence Thomas (1991), Samuel Alito (2005), and John Roberts (2005) were appointed by Republican presidents. This is the block that tends to represent the majority in 5-4 Supreme Court decisions.
Conservatives that have raged against judicial activism in the past now welcome opportunities to put issues in front of the court – especially since the gridlock in congress almost ensures no significant legislation can pass both houses of congress.
But the court cannot simply rule on issues that are not brought before them regardless of their ideological leanings. In this respect, conservatives have seized the opportunity and the initiative to push back against 80 years of runaway liberalism.
In this respect, challenging aspects of case law, despite being supported by years of precedence rulings and previously failed challenges are far for receptive for the Roberts court. In the case of Hobby Lobby, the true motives had likely nothing to do with limiting contraception to female employee’s health care plans or the religious “values” of the Hobby Lobby owners. It had far more to do with using the issue as an opportunity to challenge the government’s role in interference with their commerce and how it is conducted. Religion and birth control were simply the means to bring the issue to the court.
The Roberts Court has taken a number of narrow (5-4) decisions to roll back certain aspects of progressive gains over the last several decades. These decisions include:
- Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014) Closely held, for-profit corporations have free exercise rights under the Religious Freedom Restoration Act of 1993. As applied to such corporations, the requirement of the Patient Protection and Affordable Care Act that employers provide their female employees with no-cost access to contraception violates the Religious Freedom Restoration Act.
- Town of Greece v. Galloway, 572 U.S. ___ (2014) A town council’s practice of opening its sessions with a sectarian prayer does not violate the Establishment Clause.
- McCutcheon v. Federal Election Commission, 572 U.S. ___ (2014) Limits on the total amounts of money that individuals can donate to political campaigns during two-year election cycles violate the First Amendment.
- National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012) The Patient Protection and Affordable Care Act’s expansion of Medicaid is unconstitutional as-written—it is unduly coercive to force the states to choose between participating in the expansion or forgoing all Medicaid funds. In addition, the individual health insurance mandate is constitutional by virtue of the Taxing and Spending Clause (though not by the Commerce Clause or the Necessary and Proper Clause).
- Shelby County v. Holder, 570 U.S. ___ (2013) Section 4(b) of the Voting Rights Act of 1965, which contains the coverage formula that determines which state and local jurisdictions are subjected to federal preclearance from the United States Department of Justice before implementing any changes to their voting laws or practices based on their histories of racial discrimination in voting, is unconstitutional because it no longer reflects current societal conditions.
- Schuette v. Coalition to Defend Affirmative Action, 572 U.S. ___ (2014) A Michigan state constitutional amendment that bans affirmative action does not violate the Equal Protection Clause.
However, a funny thing happened on the way to the forum. The wedding of religious conservatives to Republican conservatism in 1980, forming a neo-theoconservative wing of the GOP will find the court’s rulings not completely to their liking. The court’s decision to strike down the Defense of Marriage Act in the United States v. Windsor found that the terms “marriage” and “spouse” to be applied to only one man and one woman to be a deprivation of equal liberty protected by the Fifth Amendment. The limitation of government to interfere in the lives of individuals, regardless of sexual orientation, remains a pillar of true conservatism untainted by the strongly held views of the religious right.
However, the court is likely to be sympathetic to challenges of “government coercion” that forces commerce with homosexuals – especially if religious rights are in play. Again, using religion as the means to the end, expect cases such as the Colorado baker, Jack Phillips, that refused to bake a wedding cake for a gay couple based on his “deeply held” religious belief to find its way to the SC in the next few years and receive another 5-4 ruling in his favor.
This wouldn’t be because the court hold animosity against the LBGT community (with the possible exceptions of Justices Scalia and Thomas), it’s simply that the slim majority of the court takes exception to the government requiring an individual to engage in commerce with someone they do not wish to – in this case it would be gay people – but once that box is open, it can be applied to anyone if the right rationale is applied.
Don’t be suckered in by the “war on women” or the “war on religion” headlines – these are simply the casualties and the cost of the long war. Right now, conservatives have spent a long time waiting along that river waiting to see the bodies of their enemies float by. Liberals thought they won this war a long time ago and forgot what the fight is really about.