Can we all agree on this? If you’re writing a column on, say, a First Amendment issue, you should do some research–not enough for a doctoral thesis or even a legal brief, but, say, enough to demonstrate you have an understanding of the issue beyond the most casual of observers. Is that really too much to ask?
Apparently so for Daily Beast columnist and occasional MSNBC contributor Sally Kohn. She has offered her audience a piece at the Daily Beast titled: “When Religion and Liberty Collide,” and subtitled: “How right-wing conservatives are using the Hobby Lobby Supreme Court case on contraception to force their religious views on the nation.”
Forget for the moment that it is the government forcing its views on Hobby Lobby’s religious owners, who object to having to pay for health insurance that covers abortifacients. No, in the upside-down world Kohn inhabits, their refusal to pay for something they’re being coerced into paying somehow represents them forcing the rest of the nation to believe what they believe.
But moving on to the article itself (to which I’m not going to link — why send clicks her way?), Kohn immediately oversimplifies early U.S. history, giving her readers something akin to a Golden Books version of the past. Scratch that. Golden Books were pretty darned good on a number of subjects. Kohn is not. She points out how early settlers wanted to escape religious persecution. Fair and true enough. But she goes on to speculate:
…our forebears would be appalled at how right-wing conservatives are trying to use government to force their religious views on all of us.
Sorry, Sally. A lot of those early settlers would applaud Hobby Lobby if they were trying to force their religious views on all of us (which they are not) because, while the settlers fled their home countries to avoid persecution, they often thought nothing of persecuting the religious minorities in their own midst. Read up on some of the history. It’s not hard to find. The early settlers weren’t a particularly tolerant bunch. It took years–decades–nearly a century–for religious freedom to become enshrined in the Bill of Rights.
As Kevin Seamus Hasson writes in his book on First Amendment issues, The Right to be Wrong:
It is perhaps America’s most enduring myth: The Pilgrims came here looking for religious freedom, found it, and we all lived happily ever after.
They weren’t. They didn’t. We haven’t.
Hasson, founder of the public policy law firm the Becket Fund for Religious Liberty, goes on to detail how the early Americans’ thinking evolved from persecution to tolerance to outright protection of religious belief.
And it’s not religion, Hasson argues, so much as “conscience” these rights protect. The same rights that protect Hobby Lobby also protect the sincere conscientious objector.
Ms. Kohn, though, is either ignorant of all this or chooses to ignore it (since she has a masters degree in “legal studies,” one wonders if her omissions are deliberate). She moves along to warn us to “make no mistake” about Hobby Lobby’s and conservatives’ agenda, which is so wrong, so unfair. After all, Congress passed the ACA! The president signed it! The Supreme Court deemed it “constitutional”! It contains contraceptive coverage, by golly, because women get to choose what to do with their bodies.
One can only imagine how Ms. Kohn would have defended other laws passed by Congress, signed by the president, and deemed, in some way, constitutional. Slavery laws come to mind. If her list of government actions is what leads to protected rights, why not include the slave owners’? The segregationists’? (Whose rights were upheld in Plessy v. Ferguson, only to be overturned in Brown v. Board of Education later.)
Ms. Kohn’s understanding of history and what constitutes protected rights seems to be a Rorschach image, in which she sees what she wants to see.
She accuses conservatives of wanting to impose their views on the nation and even of trying to “critique and other-ize” the president’s own religion by criticizing his radical former minister, Rev. Jeremiah Wright.
In the right-wing political vision, religion isn’t a shining hill of pluralism but a dark cave of conformity in which all non-believers are condemned.
And finally, she trots out the old “separation of church and state” phrase, coined by Thomas Jefferson in a letter to the Danbury Baptist Association, and used in the 1947 Everson v. Board of Education case.
But here’s what she leaves out: Jefferson might have argued for a wall of separation between church and state but, if actions speak louder than words, his actions indicated his idea of a wall was something rather porous. Two days after penning that famous phrase, Jefferson attended a worship service. At the Capitol. On the floor of the House of Representatives. He even brought along the Marine Band to accompany the hymns. That rascal Jefferson. I wouldn’t be surprised to learn that, while penning words about equality, he owned slaves!
As to the Everson case, while Kohn quotes the church/state phrase used in its ruling, she neglects to tell her readers what the case was about. It dealt with some taxpayers in New Jersey objecting to state funds being used to underwrite bus transportation for private school students, just as such transportation was covered for public school kids. And the court ruled 5-4 that paying for buses to private religious schools did not violate the First Amendment’s prohibition on establishment of religion, did not breach the “wall.”
As an aside, an organization sprang up after this decision that often is on the “no” side of school voucher cases–Americans United for Separation of Church and State. Except, back then, they had a longer name– Protestants and Other Americans United for Separation of Church and State. They didn’t shorten it until 1971. A lot of the private New Jersey schools getting state-funded student transportation were Catholic.
Discussing that case, or some of the other famous First Amendment ones, might have aided Kohn’s readers in understanding the issues surrounding the important principle of freedom of conscience, which is at the heart of First Amendment cases. As Hasson so wisely puts it:
A government that seeks to minimize the consciences of its citizens may well find itself, in a generation or two, in a predicament far worse than having too many principled people claiming too many points of conscience. It may find itself with too few principled people to sustain a society.
Kohn doesn’t get that at all, if her piece was a guide to her understanding. But if she had written a piece about the complexity of First Amendment cases, about the principle of protection of conscience, she would have had to give up something: her hatred for conservatives.
Libby Sternberg is a novelist. Follow her on Twitter @LibbysBooks.