Supreme Court's Religious Frenzy

By Charles P. Pierce, Esquire Magazine

27 March 12

his picture, which ran on the front page of The New York Times this morning, and which accompanied the story about the opening of the arguments in the Supreme Court regarding the constitutionality of the Affordable Care Act, makes me as sad and despairing about the state of the country as I have been in an awfully long time. There are better places on the Intertoobz than this one to look either for a general overview of what may happen in the Court over the next three days - Ezra Klein's joint did a masterful job this morning - and, if you're looking for pundits to support your own personal opinions on what should happen, you don't need me to help you find them. But this picture makes the whole affair ring a little hollow already.

What exactly are these people praying for?

Are they praying for a return to the way things were? For the denial of health insurance due to whatever the whimsical opinions of corporate bureaucrats determine to be a pre-existing condition? For the right to be thrown into an overpriced, endlessly gouging "marketplace" the moment when you turn 25, and you're burdened anyway with usurious student loans? Are they praying that the law be upheld? That the central place the insurance industry holds the way we do health care in this country be guaranteed in what looks like perpetuity, with the government's power behind it?

(This is where the conservative argument falls into incoherence. Conservatives are opposed to the mandate because of, well, Liberty (!), but they never pursue that argument to the point where they might discomfit the insurance companies because of, well, The Market (!). This latter, of course, is why conservatives supported a mandate as a market-based solution in the first place.)

Back in the day, when we had a couple of thousand Russian ICBMs aimed (we were sure) right at St. Peter's School in Worcester, Mass, we all used to say a hundred Hail Mary's so that Russia would convert to Catholicism and, if we were lucky, aim those ICBM's at the godless Red Chinese. (I made that last part up.) The Cuban Missile Crisis, I recall, was a particularly fervent time; there were no atheists hiding under desks. As a result of those days, when people start publicly praying in a secular political context, I get extremely nervous. Something's going on that I don't know about.

One consequence of the very weird debate we've been having about contraception, and its place in the overall scheme of things in the ACA, has been to inject the always ameliorating element of religious frenzy into what already was a debate so carried off by emotion that it had departed the actual reality of the law two years ago. Suddenly, we weren't just talking about the limits of the Commerce clause, or the dead hand of government choking the marketplace or, more generally, the place of government in our lives. We now also were talking about whether or not the government not only could tell us what we could buy, it was telling us what we could believe. That this argument was the purest moonshine is utterly irrelevant. (Are people seriously arguing that an insurance company should be able to avail itself of a conscience clause? Shouldn't it be made to demonstrate a conscience first?) Purely as law, the argument against the mandate is no more substantial - as the indispensible Dahlia Lithwick demonstrates rather conclusively - than the "religious liberty" kerfuffle is. It always has been about political semiotics, and the meaning of words. Once the contraception question blew up, it also became about religious semiotics, and the meaning of words. That engaged a whole 'nother universe of debate, clouding the issue this time with incense and the sweet smell of melting candle wax.

It's hard now to believe that it all was an accident. It was too well-timed. (Surely, it was not lost on the people ginning up the controversy, which included the American Catholic bishops, that there is a Catholic majority on the Supreme Court, including Antonin Scalia, who makes the late Cardinal Spellman look like a Presbyterian.) The case was percolating toward the current climax, and most of the other issues had been argued into a fine pulp, especially in the Republican primary contests, in which the ACA was regularly treated as though it were one of the Nuremberg laws. But there was a kind of general lull in the debate out in the country at large, where it was assumed that the Supreme Court would settle the matter once and for all. (Lithwick makes this point in her piece when she talks about how important a factor "momentum" has been in propelling the matter to the Supreme Court in the first place.) The polling data said quite clearly that the American public at large had been convinced by a narrow margin that the law was "unconstitutional" which, generally, when we are talking about the American public at large means, "I don't know much about this, but people tell me I shouldn't like it." (Here, as Lithwick points out, is where the Obama Administration failed most utterly.) But the public also seemed content to ride out the controversy until the nine wise souls in Washington sorted the whole matter out. The data also indicated that the public would be willing to live with whatever the Supreme Court has decided.

I don't believe that's the case any more. To engage religious opposition to the ACA - to make opposition to it into a matter of faith, rather than merely a matter of politics - is to guarantee that the opposition survives whatever the ruling the Supreme Court makes. (The reaction to Roe v. Wade is simply the most garish example of this. That decision was supposed to settle the issue of abortion within the secular law. How'd that work out?) Casting the law as an infringement of personal liberty because of the mandate, particularly after a conservative, corporate-friendly Supreme Court had decided otherwise, always was going to be a tough sell out in the country. But casting the ACA as an infringement on religious conscience guarantees that the opposition will outlive the court case. (It also rather effectively blunts whatever victory the Obama administration would declare if it prevails.) There will be organized resistance to the implementation of this law at the local level all over the country. There will be sermons from the pulpit. There will be sanctified misinformation until hell won't have it. Would you like to estimate the level of national outrage that will be created the first time a request for a "conscience exemption" is denied?

What the injection of religion into this controversy accomplished, and it was neatly done, was to remove the opposition to the ACA from the realm of secular politics so as to enable it to continue in the face of a decision that upheld the law. That's the outcome for which those people are praying. They are praying for the religious immortality of their political positions.