A First Amendment case that isn’t a First Amendment case?

It’s time, once again, to venture into the dangerous world of religious and political labels. The current news hook for this meditation is, of course, the so-called Hobby Lobby case linked to the religious-liberty implications of the Affordable Care Act.

Speaking of labels: Why is this the Hobby Lobby case, in headline after headline? Why “Hobby Lobby” alone? Why isn’t this, in part, the Mennonite case?

Now, I realize Hobby Lobby is a nationally known brand and that this punchy name fits better in a headline than that of Conestoga Wood, the cabinetmaking company owned by a Mennonite family in Pennsylvania that is also part of the case. Is it possible that “Mennonites fight for free exercise of religion” isn’t as culture-wars friendly a story line as “giant, rich conservative evangelical company fights, etc., etc.”?

Just asking.

But back to my main point. In recent years I have been asking the following question about the labels used in coverage of the rising tide of stories linked to fights about basic First Amendment rights. I recently stated the essential labeling question this way:

What should journalists call a person who waffles on free speech, waffles on freedom of association and waffles on religious liberty?

The answer: I don’t know, but the accurate term to describe this person — in the history of American political thought — is not not “liberal.”

The question can, of course, be turned upside down: What will mainstream journalists call a person who is a fierce defender of free speech, the freedom of association and religious liberty?

The answer, based on the news coverage I have seen in the past year or so is this: It appears that such a person is now either a “conservative” or perhaps an old-school member of the American Civil Liberties Union. As recently as the Clinton White House it was possible for “liberals” as well as “conservatives” to stand together on many, if not most, First Amendment issues — such as support for the Religious Freedom Restoration Act. And these days?

The Los Angeles Times recently published a very interesting, and ironic, story that tried to focus on this mysterious, strangely illiberal turn in American public life. Here is the top of the report:

WASHINGTON – For decades, liberals wielded the 1st Amendment to protect antiwar activists, civil rights protesters and government whistle-blowers.

These days, however, the Constitution’s protection for free speech and religious liberty has become the weapon of choice for conservatives.

This year’s Supreme Court term features an unusual array of potentially powerful 1st Amendment claims, all of them coming from groups on the right. And in nearly every case, liberal groups — often in alliance with the Obama administration — are taking the opposing side, supporting state and federal laws that have come under attack for infringing upon the rights of conservatives.

Then there is this interesting observation near the top of the story:

Conservatives and libertarians say the role reversal at the high court reflects a larger shift in political alliances and attitudes toward government.

“The progressive mind-set sees government as a force for good,” said Ilya Shapiro, a lawyer for the libertarian Cato Institute. So, increasingly, “the energy behind those who are battling with the government” comes from libertarians and conservatives.

“This is a real trend over several years,” said Washington attorney Michael Carvin, a staunch conservative who led the constitutional challenge to the Affordable Care Act. “The liberals are in favor of an expansive federal government, and the conservatives are making the arguments for individual autonomy on speech and religion.”

Of course, when liberals were defending the First Amendment rights of controversial liberals (or Nazis marching through Jewish suburbs, for that matter) their actions were called “liberal” and pro-First Amendment.

Now, with legal case after legal case pitting the First Amendment rights of traditional religious believers against those who are seeking government endorsement of various doctrines emerging from the Sexual Revolution, the use of pro-First Amendment language is being called “conservative” or even — think War on Women images — oppressive.

Thus, the Los Angeles Times notes:

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