The Hobby Lobby Decision: Cultural Divisions Take Center StageRoundup
tags: SCOTUS, culture war
A historian whose work has been primarily engaged with New Deal-Fair Deal liberalism will likely view the Hobby Lobby decision and the reaction to it as proof that the character of political liberalism has changed so greatly from that of the 1930s and 1940s that it would be barely recognizable to Roosevelt and Truman—Truman's support of a national healthcare program notwithstanding.
The liberalism of the middle years of the 20th century (roughly 1933-1963) predominantly concentrated on issues of economic distribution and only tangentially addressed cultural mores. Contraception, although widely practiced with the limited means available in that era, was seldom a matter of public discussion or even polite conversation. It was not until 1965 that the Supreme Court, in Griswold v. Connecticut, struck down a Connecticut law prohibiting the sale or use of birth control devices—and did so by finding a shadowy right of privacy in "penumbras formed by emanations" from the Bill of Rights. Many of its supporters felt the decision stretched prevailing standards of constitutional interpretation, but nonetheless embraced it as necessary and liberating. Roe v. Wade followed in 1973 and rested on that same implicit right of privacy.
It surely was not a coincidence that the Griswold decision was handed down at a time when the contraceptive pill was becoming widely available and an emerging feminist movement was challenging traditional mores. It and Roe demonstrate that the Court frequently follows social trends as well as election returns. Is it doing so with Hobby Lobby?...
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