By JAMES K. FITZPATRICK
We do not want to promote an unhealthy cynicism among our children. But neither do we want them to be gullible. We have been given an example in recent weeks of how — often enough to matter — when people argue “on principle,” they are doing no such thing; that they want what they want and will choose the principle that helps them achieve that end.
We take it for granted that some people argue a case that way: lawyers, for example. We expect their primary objective to be winning the case for their client. If that takes using a literal reading of the law to exclude some evidence as inadmissible we expect them to do that, even if they were arguing for giving the police greater leeway during an arrest just the week before in a previous case. Lawyers do not pretend that they will be willing to sacrifice their client’s interests to satisfy an abstract legal principle. Their clients expect them to seek out the legal principle that will help them in the trial: period.
Politicians, pundits, and academics do not argue in that way. They make their case as if principle is their primary concern, as if they are not seeking their self-interest as much as “the right thing,” whether it be in pursuit of individual rights, states rights, judicial restraint, or a “loose” interpretation of the Constitution to provide for the needs of a changing society. The problem is that they change their tune when it suits their needs. For example, opponents of an “imperial presidency” begin arguing the case for executive power as an expression of the national will once their side wins a presidential election; and vice-versa.
We were given an example of how this flip-flop occurs in recent weeks, one that can serve well as a classroom example of the phenomenon. It revolved around the Obamacare HHS mandate and how it affected the retail chain Hobby Lobby. The two sides in the dispute have been well documented. The owners of Hobby Lobby protest that it is a violation of their religious freedom to require them to purchase a health-care package for their employees that covers contraceptives that the owners consider abortifacients. The Obama administration disagrees, contending that the owners of the company have no right to restrict the rights of their employees who disagree on the morality of the contraceptives in question.
Where’s the flip-flop? W. James Antle III documented it on March 29 on the web site National Interest (nationalinterest.org). He points out that it was liberals back in 1993 who pushed for the Religious Freedom Restoration Act. The purpose of the law was to defend the right of Native Americans to use peyote in their religious rituals. The Supreme Court had taken away that right when it upheld an Oregon law forbidding the use of the illegal drug in Native Americans’ religious ceremonies. Conservative Justice Antonin Scalia wrote the majority opinion in the case; liberal justice Harry Blackmun the dissent.
The liberal position, writes Antle, was to “endorse the principle that the government must have a compelling interest in making a person act contrary to his or her religious conscience. Whatever the First Amendment implications of the Hobby Lobby case, it is impossible to argue the contraception mandate meets that test. Large swaths of the American public are already exempt from the mandate, so how compelling could the government interest be?”
What has changed since the 1990s? Antle contends the “specific freedom in question and the plaintiff in the case” regarding peyote use by Native Americans “were likely to arouse liberal sympathies. Not so traditionalist Catholics who don’t want to subsidize contraception or evangelicals who don’t want to photograph a same-sex wedding.” Seeking to be fair, Antle observes, “One could argue these different circumstances play a role in conservatives taking a different position too.”
“White liberals,” Antle continues, react differently to the owners of Hobby Lobby than to the Native Americans in the 1990s because they “have become more secular in the last two decades. In 2012, Barack Obama carried 62 percent of voters who never attend church while Mitt Romney took 34 percent.” This has resulted in “an almost comical inability to comprehend what religious practice really entails beyond attendance at worship services or prayer. Others simply view religious people as conservative political opponents with misguided, perhaps even evil and bigoted, views.”
Hence, the religious freedom of Native Americans deserves protection under the law, but the religious freedom of the owners of Hobby Lobby needs to be restrained for the greater good of society as a whole. The principle of religious freedom is sacrosanct in one instance, a threat to the commonweal in the other. Flip-flop.
On another topic: the ongoing debate over Common Core. The supporters of these federal mandates over local education are using a tactic that they are also using in regard to Obamacare. They are arguing that it is “settled law” and that it is too late to do anything as “radical” as seeking to reverse this legislation. The goal seems to be to wear down opponents of Common Core, to make them think it futile to continue to oppose this inevitable change for our schools.
Much of the country seems not yet ready to admit to defeat. The online edition of National Review on April 2 reports that Oklahoma and Indiana are illustrating that there are ways for the states to assert their rights in the face of the federal government’s attempt to impose Common Core’s standards upon them. Alec Torres of National Review reports, “The Oklahoma State Senate passed a bill on Tuesday to withdraw the state from the Common Core standards. If the bill is signed by Gov. Mary Fallin, Oklahoma will become the second state to withdraw from Common Core. Indiana withdrew last week with Gov. Mike Pence’s signature.”
Fallin seems likely to sign the bill. In 2013, Fallin issued an executive order directing the secretary of education in Oklahoma to make sure the federal government “does not intrude in Oklahoma’s development of academic curricula and teaching strategies.” Indiana Gov. Pence expressed the same concerns when he withdrew his state from Common Core’s standards. He praised Fallin in a statement to the press criticizing Common Core.
The bottom line: Common Core is not a fait accompli. Opponents of Common Core around the country can point to what happened in Indiana and Oklahoma to underscore the point. The sky didn’t fall after the governors in those states took their stand against the federal government in the name of local control over education.
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