The idea of religious liberty has enjoyed many roles in American society — throughout our nation’s history it has been the object of vituperative disagreement, the inspiration for liberals and conservatives alike and the fodder for countless social movements. But it also lays claim to another superlative — it has often found itself at the center of contentious presidential campaigns.
The fact that two hot button issues around which both the Republicans and the Democrats have divided their camps — healthcare and marriage equality — have been imbued with rhetoric regarding religious liberty indicates that the 2016 presidential election will be no different.
The way in which each party has delineated its stance on the relationship between religious liberty and these issues has been consistent. For most Republicans, invocations of religious liberty constitute a prohibitory factor — any claim of violating religious liberty immediately shifts the burden of political proof onto the governmental organ ostensibly violating religious autonomy (so long as such claims are not discriminatory), a view in line with the hands-off approach precipitated by the inclusion of the Religious Right in GOP politics. Conversely, for most Democrats, claims of violating religious liberty are met skeptically, for such claims in a country that explicitly protects such a liberty are seen as intentional obstacles in implementing social reform. This is perhaps perfectly embodied by the ongoing debate surrounding Sebelius v. Hobby Lobby Stores, Inc. — Democrats lament the case as another attempt to claim that President Obama’s health care reform represents a violation of religious liberty, while Republicans take Hobby Lobby’s case more seriously and demand that the Obama administration defend itself.
These are the positions that typical Democratic and Republican presidential candidates will take in 2016 in responding to questions that will inevitably revolve around the status of health care in the nation. However, this year’s Conservative Political Action Conference (CPAC) straw poll, which has traditionally named individuals who would become important primary contenders later in the election cycle, predicts that the Republican primaries will not necessarily yield typical contenders. For, in naming Rand Paul as the winner of the CPAC poll, it became clear that Republican voters would once again support a libertarian-leaning Republican throughout its primaries. For a party plagued by septuagenarians, this outcome is promising — Paul is (relatively) young and his brand of quasi-libertarianism could entice some young voters — desperately needed life-blood for the party — in years to come.
Rand Paul’s political ideology is at best enigmatic. While notably not as libertarian leaning as his father, Ron Paul, he represents a synthesis of libertarian and Republican proclivities. After all, Paul is indeed a registered Republican. And yet, Paul owns his own brand of political libertarianism that does not fit neatly into the GOP status quo.
In this sense, the sign of support evidenced by the CPAC straw poll poses a threat to the Republican establishment, as the same Paul-brand libertarianism that will attract young voters will simultaneously antagonize other Republican voters. Upon winning the CPAC straw poll and fielding increasing questions about another potential Paul presidential campaign, the young libertarian faces a dilemma in building his platform. Given the statistical composition of the American electorate, it is likely that Paul will eschew many of his divisive libertarian positions for more moderate opinions in order to avoid the same fate as his father, who won two consecutive CPAC straw polls in 2010 and 2011 before losing in his campaign for the presidency in 2012. In order to advance in the primaries, Paul will have to cater to his base—and that base is a tellingly motley group. But in advancing beyond the primaries, Paul will have to compromise his libertarian proclivities that attract young voters to the GOP. In fact, history shows that he is already willing to do just this. Paul will become just another equivocal Republican presidential candidate, likening himself to the post-primaries 2012 Republican presidential candidate whose own prevarications over his policy statements and even over his characterizations of 47 percent of Americans did nothing but disenchant voters.
This dilemma facing Paul between remaining true to his libertarian heritage and making himself more palatable to mainstream Republicans has been embodied by a recent conflict over that aforementioned perennial topic of debate — religious liberty. Specifically, this issue came to the fore during the recent hoopla over Arizona Senate Bill 1062, which would have reaffirmed Arizona’s Religious Freedom Restoration Act (passed in 1999) and effectively conferred upon small businesses the latitude to discriminate against customers on the basis of sexual orientation.
Proposed as a preventative measure of sorts against the potential entrance of gay marriage in Arizona, and in tandem with fears of continuing government encroachment on religious liberty represented by contention over healthcare, SB 1062 was born out of a movement to strengthen state-based legislation modeled after the federal Religious Freedom Restoration Act. Congress passed the RFRA in 1993 following the Supreme Court’s decision in Employment Decision v. Smith (1990) that discrimination on the basis of religious beliefs can only represent a violation of the First Amendment under strict scrutiny. When the Supreme Court later found the law unconstitutional in City of Boerne v. Flores (1997), many states, including Arizona, passed their own versions of the RFRA as a means to implement the same provisions that would have been effected by the federal RFRA. SB 1062, if enacted, would have permitted businesses to discriminate against their clients because of various religious scruples they held by expanding the language of Arizona’s RFRA. While the law did not explicitly target LGBT people, its effects applied largely to sexual orientation because Arizona, unlike many other states, does not define sexual orientation as an attribute protected against discrimination.
The Arizona Libertarian Party tepidly opposed SB 1062, but because of its purported intention of discrimination — not the nature of the law itself. Strict libertarians do not always oppose such legislation, for they believe that market forces better correct discrimination than does the government. Yet libertarians are also staunch defenders of civil liberties, and so the ALP likely did not want to risk the political optics of supporting a discriminatory law. Paul, as a member of the Republican Party, is not associated with the ALP, but as a one of the most libertarian members of the GOP, his views do often align with those of such an organization.
As a Republican senator from Kentucky, Paul did not need to comment on SB 1062; as a result, he did not. Nevertheless, many of his Republican colleagues did take a stand on the issue as they adamantly denounced the legislation. If Paul had instead joined his colleagues in speaking out against SB 1062, he would have cleared the air and perhaps helped clarify where he hopes to maintain his libertarian leanings and where he hopes to abjure them. This is because Paul needed to do just this.
Four years ago, when Paul commented on Title II of the Civil Rights Act of 1964 (the section that prohibits private businesses from discriminating against customers on the basis of race), he stirred up quite the controversy. Paul, aligning with his own brand of libertarianism, incontrovertibly expressed opposition to the effect of this section, commenting that “I don’t want to be associated with those [discriminating] people, but I also don’t want to limit their speech in any way in the sense that we tolerate boorish and uncivilized behavior because that’s one of the things freedom requires.” This caught those unfamiliar with the intricacies of libertarianism by surprise. As those familiar with libertarianism knew, this was not a bigoted statement. Instead, this was an expression of that earlier principle around which many strict libertarians rally — that discrimination is better corrected by market forces than by the government.
Nevertheless, Paul could not convince the public that his comment was benign. As a result, Paul later issued a statement that read: “I support the Civil Rights Act because I overwhelmingly agree with the intent of the legislation, which was to stop discrimination in the public sphere and halt the abhorrent practice of segregation and Jim Crow laws.” But it is important to note that Paul never recanted what he actually said. His remarks were never about his position on the entire Civil Rights Act, but instead about a specific section of the act. While Paul made sure to clarify that he found racism and its implementation iniquitous, he left unclear whether he was willing to expressly retract his original, traditionally libertarian qualm. Though the Civil Rights Act and SB 1062 differ in the protections they seek to enforce — the Civil Rights Act dealing with race and SB 1062 with religious liberty at the expense of LGBT rights — both concern the role of the government in regulating the behavior of businesses.
It is for this reason that the Arizona Libertarian Party’s opposition to SB 1062 is interesting: It is markedly similar to the overall effect of Paul’s comments on Title II of the Civil Rights Act. Government regulation was (perhaps) a societal imperative, but in principle, the government has no right to dictate to businesses how they ought to operate. The difference, of course, was that the ALP ended up opposing the legislation that would have produced discriminatory effects, while Paul’s comments regarding the Civil Rights Act suggested that he would have advocated for SB 1062’s enactment.
This, of course, is purely speculative. Paul had a compelling interest, then, not to remain silent on this topic, for it represented an opportunity for him to clarify the position he had established with his remarks on the Civil Rights Act.
Paul’s decision to remain taciturn has myriad implications for 2016. While the specific legislative movement behind Arizona’s SB 1062 will likely be irrelevant by the time primary season rolls around, the spirit of religious liberty that characterized it reveals the dilemma that libertarians like Paul running under the GOP ticket will face. It may be difficult to sell the nuanced position of the political libertarian to the average American voter, which is why Paul has a vested interest in addressing such gray areas that have justified the existence of a third-party Libertarian Party separate from the Republican Party for many years. With marriage equality gaining traction across the country, similarly “preventative” legislation will undoubtedly crop up over the next few years. If Paul fancies a fighting chance in 2016, this means that he has to start resolving such dilemmas now, so that he can slowly but surely convince voters of his nuanced libertarian positions and avoid alienating the Republican base he will need to win.