Ian Millhiser, “Obama warned us about the Supreme Court we have right now”
No, Scalia’s transition from Smith to Hobby Lobby cannot be explained by a change in the law. But it can be explained due to a factual distinction between the two cases. Smith was a case about Native Americans who belong to a faith that Scalia did not share. Hobby Lobby, by contrast, was brought by conservative Christians — and Scalia was also a conservative Christian.
Conservatives’ evolution on religious liberty, in other words, is best understood through their lack of judicial empathy. When the members of a Native American faith sought a religious exemption from the law, Scalia recoiled. When a Muslim inmate asked to have his imam present at his execution — or, for that matter, when Trump banned many Muslims from entering the United States altogether — the Court’s right flank does not see the virtue in these claims. Yet when a Christian conservative employer does not want provide their employees with birth control coverage — or when a Christian conservative baker refuses to serve a gay couple — the court’s Republicans are suddenly up in arms.
Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.
The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.
Sarah Posner, “The End of the City on a Hill”
Peter Sprigg, an official with the Family Research Council who spoke in Chișinău, similarly downplayed concerns about Orbán’s autocratic moves. “It seems like the Western media likes to focus on some of these sort of procedural things,” Sprigg told me, instead of how Orbán “talks about defending Western civilization rooted in Christianity. I mean that’s where we see that we have common cause with him.”
In recent years, this common cause has more and more explicitly involved the rejection of liberal democracy. “There are great experiments in postliberal political and economic life occurring right now in real places,” Carlson wrote in 2018, “in Poland’s Law and Justice Party; in the Hungary of Prime Minister Viktor Orbán; and — yes — in the land of the Great Russians led by Vladimir Putin.”
Politicians and the media know exactly what they are doing. They know that hating Muslims sells, whether it is for votes or for clicks or for profile raising. They know that there is a sweet spot where prejudice against Muslims and anti-immigration sentiment intersect, and that the former is a good way of legitimizing the latter. They know that there is a market for racism, but one that isn’t simply based on skin color – that’s too difficult to justify openly – and so “Muslim” became a good shorthand for the unwelcome other.