Ways of Getting the 1st Amendment Right

I've liked Emily Bazelon's work against bullying and for rape victims' rights in the past, so I'm not surprised that she gets the religious freedom question right, as well. If only her wisdom were guaranteed to be heard when Roberts et al get down to it.

Bazelon, of Slate magazine fame, introduced her position in a kind of back-and-forth column/blog-post debate with NY Times' Ross Douthat, who does deserve the moniker of a conservative who is thoughtful and actually mostly uncrazy, which is refreshing, especially for a devout Catholic trying to work among a religiously obsessed political tribe. Douthat deserves the cred, even if you disagree with his principles.

Where Bazelon gets it right, naturally in my view, Douthat gets it wrong. If I read Bazelon right, Douthat wants to protect religious liberty to protect dissent. That's not a crazy way to combine the notion of free speech and religious freedom, which the founding fathers managed to squeeze into the same Amendment. I'd put Douthat's position, though, in a sort of overwrought category, meaning it's a stretch. If Hobby Lobby gets to prevent the vast majority of its child-bearing-age employees from contraceptive services because it's allowed to dissent from the more secular views of the nation, than Douthat's over the top. Here's Bazelon's view, basically:

My conservative critics will surely say I’ve revealed myself as irredeemably smug here [in Bazelon's smug belief in the ascendency of the secular view], but honestly my conception of religious liberty doesn’t rest on who is right or who is wrong. If I thought the IUD caused abortions, I’d still argue for balancing religious freedom against other values rather than deploying it as a trump card. God bless our tradition of religious pluralism. But crucial to it, always, has been the understanding that the views of one religious group can’t trample all over the rights of another religious group or the rights of nonbelievers. That’s why the Constitution bars the establishment of one religion. We all get to live here. [boldface mine]

Exactly so. If only we could count on Anthony Kennedy getting that part, we might feel hopeful that we won't see, written into Supreme Court precedent, American law bent such that a few private citizens get to ignore a federal statute at the great expense of the many women in Hobby Lobby's religious grip.

Hobby Lobby's two owners get to impose a terrific burden on thousands of employees in spite of the fact that the prevented behavior -- using legal contraceptives -- is, as I just said, already legal and thus, presumably, protected behavior by law.

Bazelon has it right and Douthat has it wrong. It's a pity that, if Bazelon's view doesn't prevail, then women, many, many of them, will needlessly suffer.

And the rate of abortions will, ironically, increase. But that's another, quite connected, argument. In this case, read Bazelon and Douthat's back-and-forth in the Slate article.