Thanks in part to his successful imposition of burdensome new regulations on abortion clinics, Louisiana Governor Bobby Jindal has begun to emerge as a 2016 presidential favorite among the conservative culture war wing of the Republican Party. Speaking to BuzzFeed yesterday, Jindal previewed a new strategy on the right to claim religious exemptions from anti-discrimination laws — and win elections by campaigning to enshrine those protections in law.
Jindal firmly rejected the notion, floated by many in his party, that the GOP must jettison its social agenda in order to win national elections. But like other savvy, high-profile Republicans, he believes conservatives should actively recast the culture wars as a fight for the freedom to live according to one’s faith — not as a crusade to force a strict moral code on America.
“I gave a talk at Liberty University, where I told the graduates that they were entering a world more secular than the one their parents went into,” said Jindal. “That, as believers, that was their opportunity to be a light in the world. I told them I don’t think you should go out there and be victims and complain about it… But it just seems to me that increasingly the groups that are more and more picked on in society are evangelical Christians.”
As examples, Jindal cited the backlash against Phil Robertson, the bearded patriarch on A&E’s hit reality show Duck Dynasty, after he made crude comments about homosexuality in an interview with GQ last year. At the time, Jindal seized on the culture war flashpoint, and vigorously defended the Robertson family (who live in Louisiana) when the cable channel considered suspending the star. Since then, Jindal has repeatedly pointed to the episode as proof of growing intolerance toward conservative Christians.
“There’s a lot of stuff on TV I find offensive, and I change the channel,” Jindal said. “Now, I’m not saying as governor I want to tell A&E what they can and can’t do. They’re a private business, they’ve got a right to put whatever content they want on the air… I’m just saying as a culture, I think it’s a very dangerous place if we go from being a society that was founded because of religious liberty, to a place where we become so intolerant of those who disagree with us that we try to either silence their views, or we try limit their views to where you can only have them for an hour on Sunday.”
Indeed, we might call this the “Duck Dynasty” strategy because it is unabashedly aimed at the lowest common denominator. The War on Christmas and associated Christian persecution myths have morphed into a more general, monolithic conflict, one in which the intolerant demand that we tolerate their intolerance. These demanded exceptions to law and public policy are cast as matters of private conscience, justifying any kind of stupid bigotry imaginable with the excuse that business owners ‘believe in it.’ And thanks to yesterday’s Supreme Court decision in Sebelius v. Hobby Lobby, Jindal and his fellow culture warriors have new reason to think this strategy will work.
For although Justice Alito tried to write a narrow decision — mainly by using the word “women” as little as possible in representing his all-male, all-Catholic majority — anti-gay activists clearly intend to use it as an opening to pursue their ‘freedom agenda’ in federal courts regardless of what he intended:
The upshot of Alito’s opinion is that, for the first time in American history, people with religious objections to the law will be able to ignore many laws with impunity unless the government’s decision to enforce the law overcomes a very high legal bar that few laws survive. The full implications of Hobby Lobby, however, may not be known for years. When cases like Sherbert, Yoder and Lee were still good law at the federal level, plaintiffs alleging religious liberty alleged that they could engage in race discrimination and discrimination against women, and they also claimed immunity to paying Social Security taxes and the minimum wage. Though the Supreme Court probably isn’t ready to revisit these cases, religious business owners are likely to find many other regulations they can now object to on religious grounds. And all of these objections will come to court with vigorous tailwind.
Alito goes to great pains to deny that his opinion will open up a parade of litigation enabling employers to deny other forms of health care coverage to their employees. The government, Alito notes, “points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for “a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions.” Nor, Alito writes, has the government “provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.” This may very well be true, but there is an easy explanation for why it is true. Before the Supreme Court’s decision in Hobby Lobby, employers who object to blood transfusions or vaccinations had no reason to believe they would win in Court. Sherbert, Yoder and Lee were the law.
American courts will now see a profusion of test cases from the right aimed at nullifying public policy on a supposedly-private level. Of course, since many of these plaintiffs will be corporate-persons, the aggregate impact could potentially be quite broad. Meanwhile, in the years to come Jindal and his party will figure out a thousand new applications for Alito’s precedent that stir the passions of their base voters and further pervert the very meaning of religious freedom in America.