Ironically, Tribe agrees with Neuhaus on one point: There is one “religion clause” (even though the professor uses the conventional rhetoric of two such clauses). But in Tribe’s view, which has now been replicated in the 2020 Democratic Party platform, there is really just one “religion clause”—that which prohibits the state’s “establishment” of religion. Being tolerant to some degree, good liberals like Professor Tribe will try to find some wiggle room to “accommodate” religious “interests”—much like the liberally tolerant would “accommodate” the “interests” of Flat Earthers. But only up to a point.
That point was drawn close to the bone by the 2020 Democratic Party platform, which rejects what it called “broad religious exemptions” that “allow businesses, medical practices, social service agencies, and others to discriminate.” What that means in plain English is that, under a Democratic administration allied to Democratic majorities in both houses of Congress, the Little Sisters of the Poor will be compelled to provide contraceptives, some of which are abortifacients, to their employees. That, and nothing other than that, is what the Democratic platform promises. That is also the policy the Democratic candidate for president has said he would support. Does anyone doubt that his running mate (who seems to think the Knights of Columbus are a hate group because they espouse the understanding of marriage espoused by Barack Obama in 2008) disagrees?
This is Tribe’s First Amendment theory, turbocharged: The “religious interests” of the Little Sisters of the Poor (and evangelical Protestants, Orthodox Jews, Mormons, and all others who have religiously-informed, conscience-based objections to contraception, abortion, the redefinition of marriage, and the full LGBTQ agenda) do not fit within that “zone of permissible accommodation” that “the free exercise clause carves out of the establishment clause.” So those parties are out of luck—and out of legal protection, unless the Supreme Court comes to their rescue.
In this context, appeals to personal piety, rosary-carrying, and so forth ring hollow, however sincerely felt that piety may be.
It is fatuous to dismiss concerns over the rinsing-out of religious freedom as the overwrought fretting of culture warriors. The commitments in the Democratic platform are plain, and there can be no reasonable doubt that those commitments will be given legislative and regulatory effect by a Democratic administration in league with a Democratically-controlled House of Representatives and a Democratically-controlled Senate. Those are the facts. They are not the only facts to weigh. But those facts should certainly bear on conscientious Catholic voting for all federal offices in 2020.
George Weigel is Distinguished Senior Fellow of Washington, D.C.’s Ethics and Public Policy Center, where he holds the William E. Simon Chair in Catholic Studies.