Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA Michael Odell Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a “culture war” has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent “truth.” According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court’s treatment of each of these issues is analyzed in turn. In addition, the Supreme Court’s abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key “modalities” of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court’s jurisprudence); others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the “meaning” of America, that is, what social values will be protected under law. CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA by Michael Odell Spivey Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2015 Advisory Committee: Professor Wayne McIntosh, Chair Professor Karen Kaufmann Professor Frances Lee Professor Irwin Morris Professor Susan Dwyer ©Copyright by Michael Odell Spivey 2015

Culture Warriors Go To Court: The Supreme Court and the Battle for the "Soul" of America

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The evolution and analysis of legal protection for medical conscientious objectors.

INTRODUCTION In mid-January 2012, in its ruling in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, (1) the Supreme Court unanimously rejected the Obama administration's position that the Constitution does not require a "ministerial exception" to the employment-discrimination laws. (2) The Court specifically repudiated what even Justice Elena Kagan called the Obama administration's "amazing" argument that the Religion Clauses had no bearing on the matter. (3) Unchastened, the Department of Health and Human Services (HHS) Secretary Kathleen Sebelius one week later renewed her declared "war" (4) against the Catholic church in America and against faithful Catholics (as well as against other religious organizations and believers who share the Catholic opposition to contraceptives and/or abortifacients). Specifically, she announced that HHS, in implementing President Obama's signature healthcare legislation, (5) would require most health-insurance plans to include in the preventive services they cover all FDA-approved forms of contraception (including contraceptives that sometimes operate as abortifacients). (6) The HHS rule would allow (but not require) the HHS bureaucracy to establish exemptions from this mandate only for an extremely narrow category of "religious employers" (7): an organization qualifies as a "religious employer" only if its purpose is the "inculcation of religious values," it "primarily employs persons who share the religious tenets of the organization," and it "primarily serves persons who share the religious tenets of the organization." (8) As the head of Catholic Charities USA observed, "the ministry of Jesus Christ himself" would not qualify for the exemption. (9) Nor will Catholic Charities, Catholic Relief Services, Catholic hospitals, food banks, homeless shelters, most Catholic schools, and even many or most diocesan offices, much less Catholic business owners who strive to conduct their businesses in accordance with their religious beliefs. The HHS rule properly aroused criticism across the political spectrum for its trampling of religious liberty, including a vehement "J'Accuse" essay by Catholic thinker Michael Sean Winters, who describes himself as "a liberal and a Democrat." (10) Unlike Winters, I am not at all surprised that, when President Obama goes beyond talk to action, he sides with his "friends at Planned Parenthood and NARAL" and "treat[s] shamefully those Catholics who went out on a limb to support" him. (11) What I do find remarkable--even amazing (to reprise Justice Kagan's term)--is that the HHS mandate is so clearly unlawful. In particular, the HHS mandate violates the federal Religious Freedom Restoration Act (RFRA). (12) RFRA provides that the federal government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person: "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." (13) This standard applies "even if the burden results from a rule of general applicability." (14) The term "exercise of religion" is, in turn, defined broadly to mean "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." (15) RFRA provides that a later-enacted federal law, along with its regulatory implementation, is subject to RFRA "unless such law explicitly excludes such application by reference to this chapter." (16) In other words, RFRA bolsters the already robust presumption against implied repeal by stating that any repeal or override of its protections must be explicit. There is nothing in PPACA that explicitly overrides RFRA. (Nor is there anything that impliedly does so with respect to the HHS mandate.) So the HHS mandate must comply with RFRA. There are thus four questions involved in determining whether the HHS mandate violates RFRA: (1) Does a person engage in an "exercise of religion" when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients? …

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Edward Whelan

Papers

The HHS Contraception Mandate vs. the Religious Freedom Restoration Act