2009 was a grim year for social conservatives. Barack Obama was an ambitious and popular new president. Republicans, and their conservative philosophy, were largely discredited in the public eye by a failed war and a massive recession. And the GOP’s effort to reshape its message was still in its awkward adolescence. If the conservative movement had a mascot, it would have been a white man dressed as Paul Revere and waving a misspelled sign.
Amidst this wreckage, more than two hundred of the nation’s leading Christian conservatives joined together in a statement expressing their dismay at the state of the nation. “Many in the present administration want to make abortions legal at any stage of fetal development,” their statement claimed, while “[m]ajorities in both houses of Congress hold pro-abortion views.” Meanwhile, they feared that the liberals who now controlled the country “are very often in the vanguard of those who would trample upon the freedom of others to express their religious and moral commitments to the sanctity of life and to the dignity of marriage as the conjugal union of husband and wife.”
The signatories to this statement, which they named the “Manhattan Declaration,” included many of America’s most prominent Catholic bishops and clergy of similar prominence in other Christian sects. It included leaders of top anti-gay organizations like the National Organization for Marriage, and of more broadly focused conservative advocacy shops such as the Family Research Council. It included university presidents and deans from Christian conservative colleges. And it included the top editors from many of the Christian right’s leading publications.
Perhaps most significantly, however, the document’s signatories includes Alan Sears, the head of one of the two conservative legal groups litigating what are likely to be the two most important cases decided by the Supreme Court this term. Indeed, the Manhattan Declaration offers a virtual roadmap to understanding what religious conservatives hope to gain from Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius, two cases the justices will hear Tuesday which present the question whether a business owner’s religious objections to birth control trump their legal obligation to include it in their employee’s health plan.
The Roadmap
“[F]reedom of religion and the rights of conscience” the Declaration claims, “are gravely jeopardized by those who would use the instruments of coercion to compel persons of faith to compromise their deepest convictions.” In the eyes of the Declaration’s signers, liberal forces had captured the arms of government and they were now prepared to use their political dominance to force conservative Christians to betray their own moral values. And the signatories were particularly concerned about two items — abortion and gay rights:
We see this, for example, in the effort to weaken or eliminate conscience clauses, and therefore to compel pro-life institutions (including religiously affiliated hospitals and clinics), and pro-life physicians, surgeons, nurses, and other health care professionals, to refer for abortions and, in certain cases, even to perform or participate in abortions. We see it in the use of anti-discrimination statutes to force religious institutions, businesses, and service providers of various sorts to comply with activities they judge to be deeply immoral or go out of business.
Remember last month’s fight over whether anti-gay business owners in Arizona could invoke “religious liberty” and get away with denying services to gay people? Look no further than the Manhattan Declaration to find the intellectual origins of the bill that would have given those business owners that right.
Similarly, while the Declaration refers explicitly to “abortions,” the document calls for a vision of religious liberty that extends to birth control as well. According to Hobby Lobby’s brief in the Supreme Court, the company filed its lawsuit because it objects to “four drugs or devices that can prevent an embryo from implanting in the womb — namely, Plan B, Ella, and two types of intrauterine devices.” Hobby Lobby’s owners believe that these drugs and devices “risk killing an embryo,” and that providing a health plan which covers these services “makes them complicit in abortion.”
It’s should be noted that Hobby Lobby’s concerns are not grounded in science. As a brief filed by multiple health provider groups — including the American College of Obstetricians and Gynecologists — explains, “there is a scientific distinction between a contraceptive and an abortifacient and the scientific record demonstrates that none of the FDA-approved contraceptives covered by the Mandate are abortifacients.” So Hobby Lobby isn’t just claiming the right to object to abortion, it is claiming the right to label many common forms of birth control a form of “abortion” and object to those as well — even though drugs and devices don’t actually cause abortions.
The Manhattan Declaration, in other words, predicts both of the major fights over “religious liberty” that confront the nation this year. While the Declaration warned about “anti-discrimination statutes” forcing business owners to take actions they object to on religious grounds, one of the leading lawmakers backing the Arizona bill admitted that it was intended as a response to instances in other states where anti-gay business owners were “punished for their religious beliefs” because they denied service to gay customers in violation of those states’ anti-discrimination laws. Similarly, where the Declaration speaks of conservative Christians being forced to “participate in abortions,” Hobby Lobby claims that the law is making it “complicit in abortion.”
The Firewall
In case there is any doubt, the Manhattan Declaration is a stunningly radical document. It opposes not just abortion and marriage equality, but also “non-marital sexual cohabitation” and “the discredited idea of unilateral divorce.” The Declaration also ends with a pledge to openly defy the law. “[W]e will not comply with any edict that purports to compel our institutions to participate in abortions . . . nor will we bend to any rule purporting to force us to bless immoral sexual partnerships [or] treat them as marriages or the equivalent[.]”
Shortly after Gov. Jan Brewer (R-AZ) vetoed the Arizona bill, however, one of the nation’s most prominent social conservatives explained that conservative objections to reproductive liberty and marriage equality do not necessarily need to end in civil disobedience. Marriage equality, the New York Times’ Ross Douthat claimed, is inevitable. Yet, when it comes, Douthat also hoped for a world where, if “a Mormon caterer or a Catholic photographer objected to working at a same-sex wedding,” the rest of the country would allow them to “opt out” of any legal obligation to comply with anti-discrimination laws.
Douthat framed this kind of arrangement as the terms of social conservatives’ “surrender,” although it is a weird kind of surrender that allows the losing side to dictate terms to the victors at the moment that society has recognized many of their longstanding views as abhorrent. If Brown v. Board of Education had followed Douthat’s logic, it would have said that segregated schools violate the Constitution — except that whites-only schools are fine in Alabama and Mississippi.
Nevertheless, Douthat’s column provides a helpful window into the kind of reasoning that animates the Hobby Lobby litigation, the bill Brewer vetoed and the Manhattan Declaration. The logic of all three is that religious conservatives must comply with the law — but only up to a point. When the law asks employers to cover abortions that aren’t actually abortions, or when it asks them to treat gay men, lesbians and bisexuals as if they are human beings entitled to the same dignity as straight men and women, then the Christian right must be given a special right to defy the law. And if the courts won’t give it to them, then the Manhattan Declaration calls upon conservative Christians to refuse to comply with the law regardless.
If Hobby Lobby and Conestoga Wood lose, then it remains to be seen whether either of them will actually take up this call for disobedience. Should they win, however, there should be no doubt what the Christian right’s next move will be. The Manhattan Declaration lays out two foes: reproductive liberty and gay rights. Hobby Lobby asks the Court to take care of the former. The next lawsuit will target the latter — and it will be able to cite Hobby Lobby as a powerful precedent supporting anti-gay discrimination.
Ian Millhiser is ThinkProgress’ Justice Editor. You can follow him on Twitter at @imillhiser.