What is a judge to do?
Equal sexual liberty is not the first cluster of ideas that threatens to redefine religious liberty. Starting in 1970, the Court’s (and associated elites’) negative judgment about Catholic schools’ compatibility with our “democratic” values determined Establishment Clause doctrine. The effects lasted more than a generation. We are just now moving on from that inheritance. Today a host of challenges to religious liberty — involving contraception, sterilization, euthanasia, abortion, and the whole gamut of sexual-orientation questions, up to and including same-sex “marriage” — are poised to do the same remodeling job. This time the meaning of both First Amendment clauses is up for grabs.
This deal is not done. “Equal sexual liberty” is a powerful and seductive vision. It has many adherents. It has already scored some big victories over religious freedom. But its triumph is not inevitable, even though its proponents say that they are on the “right side of history.”
Any resistance strategy must recognize that most — not all, by any means — of the trump cards are held by legislators. Lawmakers are more likely than judges to see and act upon the distinctive nature and value of religion and religious institutions. They are more likely than judges to reject the phony moral equivalence of, say, Barack Obama, who stated on Roe
’s anniversary that the right to abortion could not be abandoned without sacrificing family privacy. The president that day marched in lockstep with the Supreme Court, which defends abortion rights as inseparable from a woman’s right to have a baby. That one involves killing and the other does not is, evidently, irrelevant. Legislators are more likely than judges to overturn the HHS mandate, too.
The template for protective legislation could be the law that exists today about conscientious objection to capital punishment: The language is clear, the coverage is comprehensive, and judges can enforce it without sinking into perplexity over big questions, and without smuggling in equal-sexual-liberty ideology. This federal law states that no employee of any governmental unit (national, state, or local) may be required to “attend” or “participate in . . . any prosecution or execution” if doing so “is contrary to the moral or religious convictions of the employee.” Little or no objection has ever been raised to this entirely unexceptionable statute.
The protective shield around the objecting employee is large. “‘Participation in executions” includes personal preparation of the condemned individual and the apparatus used for execution and supervision of the activities of other personnel in carrying out such activities.”
Of course, this exemption implies no insult to anyone’s preferred path to orgasm. That is probably why it is uncontroversial.
— Gerard V. Bradley is a professor of law at the University of Notre Dame. A version of this article appeared in the March 5, 2012, issue of National Review.