Progressive Illiberalism

National Review Online

Monday, July 14, 2014

Consider, for a moment, how we arrived at the current state of the Hobby Lobby controversy: Ages ago, members of Congress, including a large majority of Democrats, came to believe that the justices of the Supreme Court, notably Justice Antonin Scalia, were taking too narrow a view of the religious liberties secured by the First Amendment. So Congress passed, with overwhelming bipartisan support and the signature of President Bill Clinton, the Religious Freedom Restoration Act (RFRA), which requires that when the federal government significantly burdens the exercise of religious liberties, it must do so in the least intrusive fashion.

Along comes the Affordable Care Act (ACA), a massive transfer of power to the unelected bureaucracies, which empowered the Obama administration to issue regulations that burdened a religious liberty — the right to decline to involve oneself in the distribution of certain kinds of contraceptives and potential abortifacients — and did so in the most restrictive way possible, i.e. through a practically universal federal mandate. And along come the justices of the Supreme Court, including Antonin Scalia, a man gifted with the ability to read, with a ruling confirming precisely the broad protections of religious liberty demanded by Congress in the RFRA. Cue dark whisperings about popery on the Supreme Court from Democrats, who seem to believe that the role of the Court is to give them political victories rather than to apply the law to disputes.

This leaves Democrats in a political pickle. They passed a law to protect religious freedom, but they do not desire to protect religious freedom when doing so interrupts their risible war-on-women soap opera. And so Senate Democrats, led by Colorado’s Mark Udall and Washington’s Patty Murray, are preparing for a session of legislative yoga, the outcome of which would be to preserve the appearance of preserving religious liberties under RFRA while gutting legal protections when they protect those liberties from Democratic constituencies. Thus the people who like to say “You can’t legislate morality” intend to make their own moral inclinations mandatory.

Senator Udall, in his rhetoric, has been particularly dishonest about this, characterizing the Hobby Lobby decision as mandating that women “have to ask their bosses for a permission slip to access common forms of birth control.” In fact, the decision does no such thing: Hobby Lobby has nothing to do with the right to do anything, but rather with the right to not do something.

The prevailing view in Democratic circles is that Americans enjoy constitutional and legal rights when acting alone but not when acting jointly — i.e., not when it matters most to public affairs. Under this model, the owners of Hobby Lobby enjoy First Amendment religious protections, and RFRA protections, when they are kneeling in prayer by their bedsides, and perhaps, with certain limitations and IRS oversight, when they are in their church pews. But if they make a decision together, as a group of business owners with a particular vision of the good life and their own duties as people of conscience, then the Democrats believe that their legal and constitutional rights should be set aside, as though human beings and American citizens acting in concert with one another were less than human beings or less than American citizens because of that act of coordination.

That is morally and constitutionally illiterate, but it is the prevailing view on the Left — especially when it comes to the First Amendment. Once again vexed by the likes of Antonin Scalia and his Cro-Magnon insistence that words mean things, Senate Democrats have rallied behind Harry Reid’s attempt to repeal the First Amendment’s free-speech protections, proposing to effectively disembowel the Bill of Rights. Once again, the theory is that while individuals enjoy free-speech rights, associations do not — except for Democrat-friendly associations such as labor unions and the New York Times. Ordinary citizens acting together and pooling their resources to engage in political discourse are to be denied free-speech protection.

Recall that the Citizens United decision, which has driven the Left positively batty with rage, involved the matter of whether the federal government should be allowed to imprison American citizens for screening a film critical of Hillary Rodham Clinton, who was then running for president. The Supreme Court said “No,” for obvious reasons — if the First Amendment exists for any purpose, it is to protect those who would criticize the government and political candidates.

The Democratic theory of rights is extraordinarily convenient in that it would concentrate power in institutions such as the media, the unions, and the government bureaucracies — institutions that are controlled by and friendly to Democrats and their interests. But if ordinary people wish to form an organization to work for, say, reform of the criminally abusive agency that enforces our tax code, they will have to ask Democrats’ permission first, and any discourse in which they engage will have to be conducted according to the Democrats’ rules.

The Democrats dishonestly present this as a matter of campaign finance, which it is not: We already have rules in place that govern political campaigns, and an entire federal agency charged with enforcing those rules. Citizens United is not a campaign for public office — it is an advocacy group, like the NAACP or NOW. It is simply one with views that Democrats do not wish to see tolerated in the public square, and tactics that Democrats find disagreeable.

There is an ongoing debate on right about what to call our antagonists on the left. “Liberal” is the traditional word, and one that we still employ out of habit, but the Left is anything but liberal — in the matter of contraception as in the matter of free speech, it is fundamentally and incorrigibly illiberal. The word “progressive” has some appeal in that it does not invest the Left with the merits of a liberalism that it detests, but that term presents a problem, namely the question of: Progressing toward what? If Senators Reid, Murray, and Udall are any indication, the answer is an enlarged state under the management of a diminished intelligence.