One reason why the level of scrutiny often makes no difference is that the decisive questions in court are like open channels for moral evaluative judgments. What is a “compelling” state interest? Does the mandate (for instance) combat “unjust discrimination”? In what sense — if any — do institutions have “consciences”? Isn’t it true that only persons have “consciences”? How should “conscience” be defined in a pluralistic democracy like ours?
Where judges are given chances like these to be ideological, most will side with the progressive mindset and against religious liberty. They have a vested interest in doing so: The Supreme Court itself has been the vanguard of the attacking force. The Court has propounded and enforced an ideology of freedom and law which we shall call equal sexual liberty. It is propelling the assault on religious freedom. Those tectonic plates have names like Brennan and Kennedy and Stevens written on them.
The HHS mandate is supposed to guarantee women access to “reproductive health” services. This claim is nested within a broader social vision from which all women — whether they want the Pill or not — supposedly benefit. The Supreme Court’s centrist bloc explained this in Planned Parenthood v. Casey
, the 1992 affirmation of Roe v. Wade
“For two decades . . . people have . . . made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” The justification for a more overt and extensive abortion
mandate than HHS just promulgated (which includes morning- and week-after pills) is now at hand. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
President Obama expressed the same thought a few weeks ago when he welcomed another year of Roe v. Wade. We must, the president said, “continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.” The unstated but obvious corollary is that “our daughters” should also be able to have all the sex they want (or, at least, as much sex as our sons have), without losing a step to their fraternal competitors in the race for success.
This vision is powerful enough to compress religious liberty by itself. But the view so far described is not all of it. The story about “our daughters” comes out of what the Supreme Court in Casey christened as the “heart” of all constitutional liberty. It is the individual’s right “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This unimaginably radical autonomy sometimes does business as “authenticity” or “identity.” It is the constitutional parent (or caregiver) of a politics of equal recognition and respect. The super-liberty of the “mystery” passage is the overriding good, the intrinsically valuable asset to personal fulfillment. It is what allows you to be you, and me to be me. What could be more important or more fundamental than that?
If this extraordinary moral independence were just a matter of being left alone by the law, it would be turgid rhetoric, but not the toxic threat to religious liberty that it is. The law today seeks to empower individuals to create their own worlds. Empowerment involves not only supplying folks with the tangibles (food stamps, guaranteed loans) of independent living, but also removing intangible impediments to one’s equal sexual liberty. Think of the proliferation and reach of sundry “non-discrimination” laws, including those about marital status and sexual orientation, all of which are meant to clear one’s path of obstacles deriving from the adverse moral judgments of others.
The law has also become a therapist. For several reasons — including the unprecedented penetration of legal norms into the workplace, the school, the culture, and the family, as well as the emergence of constitutional law as our society’s paramount value-repository and moral educator — the law now seeks to affirm or endorse or recognize everyone’s lifestyle choices, whatever they happen to be. This writ runs beyond the law’s own precincts. Ordinary folks are called upon not only to respect everyone, notwithstanding his or her sexual and reproductive choices, but also to respect others’ choices, or at least not to publicly demean them.
This equal-respect dynamic is most visible in the law’s treatment of sexual orientation. The linchpin of the Supreme Court’s 2003 ruling against state laws prohibiting sodomy was the mystery passage from Planned Parenthood v. Casey. The Court in Lawrence v. Texas reasoned that even never-enforced laws against sodomy conveyed the state’s disapproval of homosexual persons. The law deemed them to be “second-class” citizens. This “demeaning” effect had to be uprooted, lest it promote — the Court further said — private discrimination against homosexuals. According to Lawrence, the Constitution requires judges and legislators to do what they can — within limits, to be sure — to protect homosexuals and lesbians from that sort of moral criticism.