It was 20 years ago this week that I argued in this space that we were in the late stages of a crucial ball game focused on the First Amendment. The clock was running, I said, and the buzzer was soon to sound.
At issue was the long-running contest between two key phrases in the amendment. One team featured zealots for the prohibition of any governmental action that might help establish any particular religion as “official.” The other team starred players who stressed the requirement that the free exercise of religion never be restricted.
The two concepts are, of course, in some tension with each other. The writers of the Constitution meant that to be so. And for most of our nation’s first two centuries, that tension was creatively respected.
But then, during the last half of the 1900s, from World War II on, all kinds of regulations and court rulings seemed to give the advantage in this crucial game to those who constantly feared the formation in America of something like a theocracy. When the “No Establishment” batters struck out with their scaremongering tactics, the umps gave them an extra swing or two at the ball. Fouls were called fair. Runners who were tagged out by a dozen feet were called safe. School children, assigned to write essays on “What Christmas Means to Me,” were told not to mention Christ’s birth. Just to be on the safe side, employees were encouraged to substitute the word holiday for Christmas. Churches couldn’t rent space, otherwise idle on Sundays, in public buildings.
But 20 years back, while acknowledging that the “No Establishment” team had run up a colossal lead over the “Free Exercise” folks, I also sounded a hopeful (if cautious) note of optimism that things might be changing a bit. It was 1993, and mostly because George H.W. Bush had broken his promise about taxes, we were just getting ready to inaugurate Bill Clinton as president. Clinton was seen as centrist on such issues. And thanks to the hard work of several aggressive Christian legal organizations, scattered “Free Exercise” victories were emerging here and there. Even though I facetiously reported the score in this important game as 272-3 in favor of the “No Establishment” team, I argued that there might be reasons for hope.
Not now. Not in the year 2013.
If the recent high-handed federal actions against the Hobby Lobby corporation of Oklahoma are not quickly and unambiguously reversed and overturned, the “Free Exercise” team might well be persuaded that the game is all but over. Hobby Lobby is a multi-million dollar, multi-state retail chain owned and controlled by an extended Christian family. Facing the details of the newly imposed Obamacare health program, Hobby Lobby has concluded it cannot in good conscience comply with the requirement that it offer its employees insurance coverage providing abortifacient drugs. Hobby Lobby asked the administration and the courts to delay any fines (estimated at $1.3 million per day) until the appropriate courts could hear its appeal. But Hobby Lobby’s request was immediately and robustly denied.
If all this is not a blatant denial of an American citizen’s freedom to exercise his or her deeply held religious beliefs, it’s hard to imagine what the federal government might do to be offensive. The Constitution couldn’t be clearer. It doesn’t clutter the landscape with possible exceptions. It says bluntly and succinctly that neither Obamacare nor any bureaucrat spouting forth an “executive action” may include any provision that restricts the free exercise of someone’s religious beliefs.
All that has to do with the issue itself. But then there’s also the tone. Why, when Hobby Lobby appeals respectfully, through proper channels—“Can we wait on the fines until the issue is resolved by the courts?”—are the president’s administration and the Supreme Court justice he appointed so adamant and so quick to lower the hammer? Isn’t this the president who a few weeks ago was calling for civility in the discussion of hard matters?
The tones of dictatorship are all over the Hobby Lobby case. No ball game I’ve ever attended included referees so blatantly determined to help one team win.
If only it were just a game.