Years before Hobby Lobby CEO Steve Green purchased antiquities from ISIS, he became famous for quite a different reason: He told the courts he had a moral dilemma. The Affordable Care Act meant that his company’s health-insurance plan had to cover birth control. Green is a conservative Evangelical, and he wrongly believed that some forms of contraception can cause abortions. The ACA’s contraception mandate thus violated his First Amendment right to freely exercise his faith, he said. Green, who was already well-known to Evangelicals thanks to his store, stepped into a new and more prominent role — victim.
Victims are valuable to the Christian right. The religious and political entities that make up this coalition are powerful and have been so for many decades; they’ve elected presidents, shaped government policy, founded universities and law schools. Key to the movement’s prosperity is its ability to manufacture grievance, its conviction that secularism is strangling a “Christian nation” to death. Fear drives voters to the polls, and it opens donors’ pocketbooks.
So it didn’t matter whether Steve Green understood how birth control worked. His employees mattered even less, at least to the Christian right. The movement’s foremost legal minds wanted a case that could challenge the contraception mandate, and they needed to keep a useful story alive. They got it with Hobby Lobby v. Burwell when the Supreme Court ruled 5-4 in his favor, finding that the contraception mandate indeed violated his religious freedom. In doing so, five conservative justices hollowed out birth-control access in the U.S. and reinforced an argument most favorable to the Christian right: that the owner of a secular corporation has the ability to flout the law when he finds it distasteful thanks to the Religious Freedom Restoration Act. The phrase “religious liberty” increasingly has all the power of an incantation on the Christian right. Once invoked, it is supposed to provide its agenda relief from scrutiny. At the same time, it turns a person’s private religious beliefs into a weapon against others.
The religious-liberty doctrine that shaped the Hobby Lobby ruling plays out again now, this time with Amy Coney Barrett as the victim. In the weeks since Barrett was nominated to replace Ruth Bader Ginsburg on the Supreme Court, her conservative Catholic beliefs and membership in a hierarchical “covenant community” generated furor on the left. To the left, Barrett resembles a means for the Christian right to manifest outcomes it has explicitly endorsed for years, such as the end of legal abortion. The right, meanwhile, characterizes all scrutiny of Barrett’s personal views as so much anti-Catholicism, yet more evidence of secular hostility toward people of faith.
As Republican senators tell it, liberals hate Barrett because she has seven children, because she’s Catholic, and because she’s pro-life. “In my world being a young conservative woman is not an easy path to take,” Senator Lindsey Graham posited on Tuesday at her confirmation hearing. Once Republicans made the case for Barrett as a martyr, they elaborated that secular intolerance makes all conservative Christians victims-in-waiting. The treatment Barrett endures from liberals simply mirrors the tribulations of other God-fearing Americans, according to Republicans. Senator Ted Cruz of Texas elevated Barrett as a necessary bulwark between a hostile left and the right of Christians to practice their faith in peace. Moments later, Senator Josh Hawley did the same, asserting without evidence that the right to worship free of government interference is somehow in grave danger. (Hawley, a former attorney for the right-wing Becket Fund for Religious Liberty, worked on Hobby Lobby.)
This is all a smokescreen, just as it was when attorneys for Steve Green pleaded his case before the Supreme Court, or when an order of Catholic nuns called the Little Sisters of the Poor cried discrimination in front of the Court years later. In the latter case, religious liberty could only be satisfied if a third-party private insurance company covered contraception for Little Sisters’ employees, instead of the Sisters themselves. Cruz invoked both cases on Tuesday, holding them out as rare victories for freedom. The movement’s real goal is the expansion of religious liberty at the expense of recent civil-rights victories; it’s revanchism, distilled.
Barrett’s evasive answers to critical senators shed little new insight on how her personal views might influence her rulings. Despite her reticence, though, she may have already told us what we need to know. She delivered five speeches to the Blackstone Legal Fellowship, a training program funded by the Alliance Defending Freedom, which is the source of many legal challenges to both the ACA’s contraception mandate and to local and state ordinances that ban discrimination on the basis of sexual identity or orientation. While Barrett said she would not be an Antonin Scalia clone on the Court, she’s also said that she shares an originalist philosophy with the late justice, her former mentor. Scalia joined the majority in the Hobby Lobby, but his originalism was selectively flexible. His infamous dissent in Obergefell v. Hodges, which legalized same-sex marriage, made clear the limitations of his interest in freedom and equal justice for all.
Barrett’s record and statements as nominee suggest she does share the long-standing goals of the Christian right. On the subject of religious liberty, the hypocritical shortcomings of originalism have always been evident. Originalists say they read the Constitution as the Framers intended, that anything more nuanced than a literal reading of text leads a jurist into unconstitutional heresies. The men who wrote the Constitution never envisioned a country where Black people were equal citizens, same-sex couples can marry, and women could vote. But the Constitution’s architects did seek a government that would be neutral in matters of endorsing religion. The Christian right isn’t asking for neutrality — it’s asking for power. It would create a two-tiered society with one law for conservative Christians and another, more restrictive standard of law applied to everyone else. That was Scalia’s view, which he espoused repeatedly in opinions and private speeches. Even if we ignore the regressive implications of originalism, we still have to reckon with its incoherence.
So it isn’t difficult to gauge the threat Barrett poses to rulings such as Roe v. Wade. The court’s 2014 verdict in Hobby Lobby didn’t eliminate the contraception mandate; it just narrowed the provision and made birth control more difficult for women to access. In similar fashion, politicians affiliated with the Christian right have already made abortion a practical impossibility for millions of women through myriad restrictions. There are ways, too, for the Supreme Court to hollow out Roe’s right to abortion, or restrict other civil rights, without overturning precedent altogether. The movement that educated and elevated Barrett understands that it just needs useful victims, one well-timed case, and a conservative Supreme Court.