Blame It on the Patriarchy

With cases like Hobby Lobby, nuanced, complex issues get filtered through ideological rage and gloating—which is bad for both feminism and religious liberty.
Manuel Balce Ceneta/AP

Ruth Bader Ginsburg is a woman who's easy to cheer for.

The Supreme Court justice stands at five-feet, one-inch tall.  She was the second woman ever appointed to America's highest bench, the first female Jew. She's a grandma.

And most importantly, she's a breathtakingly accomplished legal scholar who's not afraid to stand up to her largely conservative male peers. Even aside from her extremely eloquent, impassioned dissent against Monday's ruling on Burwell v. Hobby Lobby, it might be expected that those who oppose the decision would rally behind "the Notorious RBG" and her defense of women's reproductive rights—she's a living representation of intelligent, feminist defiance.

But there's an interesting and inevitable translation effect that happens when a Supreme Court justice's 35-page legal argument is condensed into gleeful listicles and 1000-word op-eds: Her words become symbolic battle cries in a larger culture war over contraception, women's bodies, and sexual freedom, rather than a carefully crafted argument in an intensely complicated legal case. In the aftermath of Hobby Lobby, caricatured camps of "liberals" and "conservatives" have obligingly taken their seats and raised their megaphones on either side of a well-worn, abstract debate: sexual freedom vs. sexual purity; women's health vs. religious rights; feminism vs. patriarchy.

It's possible this is just a fact of life of the public sphere, here and everywhere: Clear sides are drawn, rhetoric is deployed, specific details are smoothed over in favor of tallying ideological wins and losses. But Hobby Lobby is just part of the beginning, not the end, of a series of clashes between competing American values. Soon, President Obama will issue an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation, which some religious groups are concerned about. On Monday, the Supreme Court punted on the longstanding case against the Mt. Soledad cross, a 43-foot veterans memorial that stands on public land. And in the coming months, courts will handle further challenges to the Affordable Care Act's so-called contraception mandate: Religious non-profit groups like Notre Dame University and an order of nuns called the Little Sisters of the Poor are contesting the legal accommodation provided by the Obama administration, saying it still violates their religious beliefs.

Although each of these issues is nuanced in its own way, they hold similar rhetorical temptations: Sweeping historical narratives, including allusions to the Founding Fathers and the civil-rights era; roughly forged, diametrically opposed camps—in this case, those who oppose sexual freedom vs. those who support women's access to contraceptives; and, above all, the most classic, ill-used wedge in American discourse: religion vs. science. Inevitably, there will be glee and gloating, outrage and accusations, but this seems unnecessary and unhelpful. It's a sloppy way of dealing with the increasingly complex challenges of pluralism, which is bad for religious liberty and women's rights alike.

In discussions of Hobby Lobby, this has certainly been the case. "This is as close as it gets to a Southern Baptist dancing for joy," crowed Russell Moore, the head of the Ethics and Religious Liberty Commission of the Southern Baptist Convention. "The court reaffirmed a fundamental guarantee for religious liberty for all people."

In actuality, this case isn't so much about the what, but the how.

Batting for the other side: "My rights feel very much scare-quoted," wrote Ann Friedman in New York Magazine.  "The medical care that is critical to my ability to live and work—and, yeah, have consequence-free sex—was dismissed by the Supreme Court as relatively unimportant."

But as Justice Samuel Alito wrote in the decision on the case, affordable contraceptive access actually is a "compelling interest," both for the government and in the eyes of the Court. From his summary of the decision:

The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest.

In other words, this case isn't so much a matter of the what, but the how. According to the 1993 Religious Freedom Restoration Act, the government had to show that it had a compelling interesting in facilitating affordable birth-control access for women, but it also had to show that it had found the "least restrictive means" of doing so.

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Emma Green is the assistant managing editor of TheAtlantic.com, where she also writes about religion and culture.

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