Back in 2012, a full two years before conservatives insisted that religious freedom entailed the right to discriminate against gay people or gay spouses in both private and public workplaces, Republicans in Washington trotted out the same religious liberty line for the arguably narrower purpose of defending religious employers who wanted to be exempt from the Affordable Care Act's contraception mandate.
That effort ultimately ran aground, because the issue became the domain of the courts, but also because it ended up inviting a bunch of retrograde public pronouncements from conservatives about birth control and reproductive rights that ultimately dwarfed whatever political advantage Republicans hoped to gain by positioning themselves as tribunes for the religiously devout.
But for that ancillary damage, conservatives of all stripes really did seem to think that they'd gotten the framing right, and could apply it generously to future culture war battles.
The events of the past week have been especially fascinating in light of that history. The effort to apply the same religious freedom argument to anti-gay measures in states across the country has encountered tremendous resistance, not just from liberals but from business leaders, statewide Republican elected officials, and GOP celebrities who, for different reasons, seem to get that stomping away from a growing majority of the population with a middle finger hoisted overhead isn't a smart thing to do.
On Wednesday night Arizona's conservative governor Jan Brewer decided which camp she was with and vetoed her state's version of the right-to-discriminate bill.
She joins a significant faction of powerful conservatives who seem to understand that religious liberty isn't an all-purpose exemption from every law and norm conservatives don't like, and can't succeed politically as such. The threat to religious liberty can't be tenuous or imagined. Brewer underscored that fact when she effectively admitted that the Arizona bill -- SB 1062 -- was a spasm of right-wing cultural panic.
"Senate Bill 1062 does not address a specific and present concern related to religious liberty in Arizona," she said. "To the supporters of the legislation, I want you to know that I understand that long-held norms about marriage and family are being challenged as never before. Our society is undergoing many dramatic changes. However, I sincerely believe that Senate Bill 1062 has the potential to create more problems than it purports to solve. It could divide Arizona in ways we cannot even imagine and no one would ever want. Religious liberty is a core American and Arizona value, so is non-discrimination."
In other words, I feel your pain, change is terrifying, but your remedy is bulls***.
Her veto carries momentous significance. It will resolve lingering ambivalence about similar efforts in other states and draw reluctant but influential players off the sidelines. I expect it'll prove to be the pivotal moment when this particular uprising began to die.
But to my eye there are two revealing things about how this all unfolded. One pertains to a faction of conservatives who continue to articulate an absurdly expansive view of religious liberty; another pertains to a subset of liberals who are drawing over-broad lessons from this and a whole series of recent culture war victories.
Plenty of people on the right have effectively acknowledged that "religious liberty," as applied here, was just a rhetorical frame that ultimately failed. But others have exposed themselves as adherents to a lopsided and deficient understanding of liberty. To support SB 1062 you must conceive of religious liberty as a social trump card. Whatever you do, in whatever social realm, must be publicly sanctioned so long as it's an expression of some putative religious belief. Or to put it another way, any actions undertaken as exercises of religion must be treated as if they had been undertaken in private. This view writes democratic norms and competing liberties entirely out of the equation: We expect to benefit from all manner of public provisions and tax preferences, but if in return the public insists we treat everyone equally, our rights have been violated. If we can't pick which insurance regulations we want to adhere to and keep the tax benefit the government provides to employers who provide their workers with health coverage, then it's not religious freedom.
That view reflects an old, reactionary conception of liberty, and to the extent that it's widely held, it implies a lot of frustrated and disoriented people, not given to relenting in any culture war battle.
But the flip side of this observation is that not every culture war battle will be as clearly delineated as this one. For instance, conservative columnist Matt Lewis propounded the following, provocative scenario in the Daily Caller on Tuesday.
"If you were a congregant in a church, wouldn’t you expect the pastor to marry you? Why should you be treated different? Any pastor — if he or she wants to maintain the church’s tax status, that is — had better grapple with this now."
I suspect Lewis and I see the debate over the religious liberty defense from different perspectives. If you're going to reduce the argument for gay rights down to a catchphrase, and you choose "leave us alone" instead of "we're here, we're queer, get used to it," you probably aren't terribly happy about the reaction to SB 1062. And Lewis seems unwilling to grapple with the sweeping nature of some of these measures.
But I think he's probably right about where the gay rights fight is ultimately headed.
It would be an infringement upon religious liberty to shutter a church that refused to marry interracial couples. But how many conservatives would go to bat for that church if the government rescinded its tax exemption? Would they argue that religious freedom entails the freedom to discriminate in otherwise unlawful ways and pay no taxes? I kind of doubt it. The same logic obviously extends to same-sex couples. And yet, if the past week proved anything it's that many, many conservatives believe that not only is it morally acceptable for a church to refuse to marry same-sex couples, but that the only way to uphold that church's religious freedom is to make sure it keeps its privileged tax status as well.
I think that's absurd and inconsistent. But I don't think the politics of that fight would stack up as neatly for LGBT rights supporters as the one in Arizona did.