The particular danger of conservatives’ turning to the courts to pursue preferred outcomes, even constitutional ones, is that doing so legitimizes the same strategy by constitutional liberals, who will—it bears repetition—sooner or later reassume control of the levers of judicial power. The time for warnings may soon give way to a season of regret: The liberal judicial ascendance is begun.
The Obama administration has ordered schools and government facilities to give transgender individuals access to facilities such as bathrooms and showers on the basis of the gender which they identify, regardless of their biological sex. Ed Whelan has already shown in a series of persuasive posts how wrong the administration is in it its interpretation of Titles VII and IX of the Civil Right Act. Here I want to discuss another mistake: the impulse to nationalize rules about complex matters of social norms that are better handled by private and decentralized ordering.
Permitting transgender people to use facilities involves issues of respect for individual difference and the privacy of personal space. I am not sure how I would resolve these issues myself. It may well depend on circumstances, such as context and place. But we will make more sensible resolutions of these issues in the long run, if the businesses and localities are allowed to make their own decisions for private and public facilities respectively. New social norms are likely to be shaped for the better, if individuals and groups are allowed to act freely without government intervention outside of preventing force and fraud.
The contrary view is that this is a matter of civil rights where national laws are needed based on philosophical premises. The analogy is to the discrimination against African Americans before the Civil Rights Act. Indeed, for the left on such matters it is always 1964.
But the analogy to racial discrimination of that era is misleading.
The Supreme Court yesterday suggested a compromise solution to the contraceptive mandate for religiously oriented service organizations that object to contraception, and required the parties to comment on whether it met their needs. This order, made after oral argument, is very unusual. It likely reflects the fact that the Court was divided 4-4 on the question of whether the Obama’s administration previous accommodation violated the Religious Freedom Restoration Act.
Some initial responses suggest that the compromise might be welcomed by both sides. It should make us reconsider whether a Supreme Court with an equal number of justices is a bad development for the nation. A Court with nine justices would likely have come down on one side or another, embittering the side that lost in the culture wars. And when the culture war divide follows the partisan divide on the Supreme Court, the decision would only increase partisan distrust of the institution.
Greater efforts at compromise would be a hallmark of 4-4 court with such divides. Justices like to render decisions as matter of craft and institutional obligation and would tend to avoid deadlock, where possible.
Perhaps never in the history of the Supreme Court has a case of such limited practical significance generated as much press attention and hyperbole as has Hobby Lobby. Hillary Clinton is the latest politician to try to make inflammatory use of it: just yesterday she stated that it was step toward the kind of anti-women policies seen in extremist and undemocratic societies.
The case has captured attention for three reasons. First, it lies on the fault line of our culture wars, pitting the religiously oriented Hobby Lobby against the secularly oriented Obama administration. Second, its actual legal issues are very complex and inaccessible to the non-lawyer public, thus permitting politicians like Clinton to use it for their own ends. Finally, it provides catnip to reporters and pundits because it concerns contraception: sex helps sell the news as surely as it does other products.
Yet the case is of limited practical importance for no less than four reasons. First, it interprets the Religious Freedom Restoration Act, not the Constitution. Congress could change the result tomorrow, if it chose. To be sure, a law on the books benefits from inertia and a divided Congress is unlikely to amend RFRA soon on this matter. But its failure to do so shows that the Supreme Court’s decision is not wildly out of step with popular sentiment as sometimes are its constitutional decisions, which are far more difficult to amend. So much for Hobby Lobby being a step to undemocratic extremism. And going forward, Congress can exempt future legislation from RFRA’s strictures to the extent it wishes.