Breadwinner Liberalism, Breadwinner Conservatism, the Nuclear Family, and Abortion

I recently started reading Robert Self’s book All in the Family, The Realignment of American Democracy Since the 1960’s. In this book, Self traces how breadwinner liberalism, the notion that the government should protect and expand rights for the nuclear family, shifted to breadwinner conservatism where the expansion of civil rights challenged social norms and thus threatened social order. As a result of this perceived threat, American politics, in its entirety, shifted from center-left to center-right. This shift is pivotal to understanding politics today.

Both breadwinner liberalism and breadwinner conservatism center on the idea of the sacred nuclear family. Whether or not the nuclear family actually exists is besides the point. Regardless of its actual existence, the nuclear family is an American mythology based on the assumption that the male breadwinner, in establishing his role as the the leader of his family, fulfills his ultimate purpose in becoming the object of modern democracy. When he secures this position, he is powerful.

Changing notions of what gender and sexuality meant threatened the universal aspiration to be part of the nuclear family. If more people didn’t want to be apart of the nuclear family, what would happen to it? Conservatives called it a crisis– the nuclear family was under attack. They were able to weaponize this mythology, and conflate it with losing the bread winner’s political power. Thus, Lyndon B. Johnson created the Great Society. As time progressed, more conservative presidents created more programs, narrowing the definition of the nuclear family, protecting it even harder. Reactions to social change are exceedingly common. This can be seen through Jim Crow laws after the abolishment of slavery, through Donald Trump’s presidential victory after Obama’s two terms. What seems to be common around these reactions is the perceived threat of a new social order, of being forced to relinquish long-held power.

When I was thinking about the nuclear family, I began to think about the woman’s role in it. I thought about her role as caretaker, nurturer, homemaker, child bearer. I thought about all the ways that identity has socialized and groomed our society; I started to think about abortion. Suddenly, I had an “aha” moment. Maybe the reason abortion is so scary to some is because it goes counter to the assumptions of the nuclear family, the assumption that women are selfless mothers. In this way, abortion is the direct rejection of the nuclear family, women may not want to be a selfless mother, calling social norms into question in a very profound way. When women “reject” the mythology of the nuclear family in this way, they threaten the position of power the nuclear family holds in the political arena, garnering narrower and narrower restrictions and definitions. This is fascinating in the wake of current abortion debates.

Freedom of your Religion ends where my Civil Rights begin?

After the Supreme Court legalized gay marriage in the monumental case Obergefell v. Hodges, religious business owners have begun raising complicity-based religious claims. These claims argue that mandating business owners to do business with gay couples violates the owners' religious freedom, making them complicit in endorsing gay marriage which they characterize as morally wrong according to their religion, violating the free practice of their religious beliefs. This is a slippery slope. Should religion be an excuse to discriminate against gay people?

In 2018, The Supreme Court issued their opinion in Masterpiece Cake Shop v. Colorado Civil Rights Commission. In this case, a wedding cake decorator declined to decorate a wedding cake for a gay couple, alleging that the cakes he decorates for weddings are an art form he uses to honor God, and it would displease God to make a cake for a same sex couple. The couple who commissioned the cake reported this as discrimination to the Colorado Civil Rights Commission. The Supreme Court issued cert to hear this case, however, they didn’t answer the question of whether or not the cake decorator should be compelled to make cakes for same sex couples, rather they chastised the Civil Rights Commission for showing hostility towards his beliefs. The Court asserted that the commission was not neutral in evaluating this case, thus violating the baker's First Amendment rights. In this sense the Court declined to comment on whether or not someone can use their religion to discriminate against gay couples when their business centers on creative expression.

A notable complicity-based religious claim is Burwell v. Hobby Lobby. In this case, Hobby Lobby, a company run by Christian individuals, argued that the affordable care act’s requirement of employee- based health care plans to cover contraception violated the company owner’s religious freedom by making them complicit in the distribution of contraception which, to them, is immoral. Hobby Lobby argued that being required to cover contraception violated their right to free exercise. The question became this: can a for-profit company deny its employees health coverage of contraception to which the employees would otherwise be entitled? In a split 5-4 opinion, the Supreme Court found that corporations could be “persons” and that mandating this coverage did violate free exercise, as well as the Religious Freedom Restoration Act of 1993. Thus, bolstered the notion that businesses have religious rights as well. When this case was decided in 2014, there wasn’t a stark ideological majority on the court as we see today. Undoubtedly, with the conservative majority that exists today coupled with the religious beliefs of new justices Kavanaugh and Barrett, complicity based religious claims could gain major traction.

The Supreme Court has recently issued cert to review the case 303 Creative LLC v. Elenis. In this case, Lorie Smith, the owner of a graphic design firm, holds that a Colorado law prohibiting public businesses from openly discriminating against gay people violates her religious freedom, as she wishes to expand her business to include wedding websites, yet she holds religious views that condemn gay marriage. According to precedent, the Supreme Court cannot infringe on the right to free speech unless it is in furtherance of a government interest. In this case, the government interest would be ensuring LGBTQ couples have equal access to the individual services that Smith provides. However, there is a twist, 303 Creative LLC is a creative entity, thus the Supreme Court’s ruling will address how businesses participating in expressive activity may have religious exemptions from the laws protecting LGBTQ rights.

This case opens up interesting questions on the intersection between religious freedoms and civil rights. It reminds me of a quote by the libertarian John Stewart Mill-- "freedom of your fist ends where my nose begins." The questions the Supreme Court will answer will center on whether or not freedom of one's right to equal treatment ends where another's beliefs begin, or one's right to religion ends where another's civil rights begin.

Marbury v. Madison: The Birth of a Political Court

When one thinks of the Supreme Court, he or she thinks of the independent judiciary, the branch of government that’s above politics. He or she thinks of the grounded counter majoritarian, the protector of fundamental rights. If I were to walk up to a random person on the street, chances are they would separate the Supreme Court from the legislative and Executive Branch. The Supreme Court commands a sort of reverence. It uplifts the underdog using impeccable, objective legal argumentation. The poison of politics has no weight. However, this is incorrect. The court is not independent from politics at all, in fact, the very conception of the Court was because of political maneuvering.

Until 1803 when Marbury v. Madison was decided, The Supreme Court as we know it did not exist. In Article 3 of the United States Constitution, the Supreme Court is established. Article 3 is one of the shortest segments of the Constitution; it reads like a brief paragraph. Many believe it was left this way intentionally. The founding fathers could not agree on their vision of what the Supreme Court would look like, and they did not know what they wanted from the Supreme Court; they were unsure of how powerful the Court would be. Because Article 3 is so small and unspecific, the Supreme Court was able to become the powerhouse that it is today.

In the year 1800, Thomas Jefferson, the ultimate anti federalist, defeated John Adams, the federalist. Before Jefferson took office, John Adams had passed the Judiciary Act of 1801, which appointed more judges to more courts. Prior to this Act, The Judiciary Act of 1789 had been signed into law by George Washington, and this Act gave the courts the ability to issue writs of mandamus. William Marbury was one of the men who was going to be a new judge, but his commission was never delivered. Marbury, in an attempt to secure his position as a judge, went to the Supreme Court to order a writ of mandamus that would compel the current Secretary of State, James Madison, to deliver the documents needed to become a judge. John Marshall was the Chief Justice of the Supreme Court at the time. He had bounced from various positions of power in American politics through the years; he was in the Continental Army, he helped to negotiate the XYZ affair with France, he served on the House of Representatives, and he was Secretary of State. What’s especially important to note is that John Marshall was a federalist, and he was very much so enmeshed in the world of politics. Thus, in deciding the outcome of Marbury vs. Madison, his political agenda would benefit from Jefferson’s federalist appointees to the Courts. However, the Supreme Court had no legitimate power, and John Marshall knew this. In deciding this case, Marshall was at a crossroad. Should he issue the writ of mandamus so that the courts can be filled with fellow federalist judges? If he did this he would risk President Jefferson ignoring his order, and the Supreme Court could never be a force to reckon with.

Marshall decided to take one for the team, and thus established the power of the Supreme Court. In his opinion, Marshall argued that the Constitution did not give the Supreme Court the right to issue writs of mandamus, and thus deemed the Judiciary Act of 1789 unconstitutional. In doing so, Marshall established the power of Judicial Review, where the Court could strike down acts of Congress or laws enacted by the President if it was deemed unconstitutional. Marshall may have lost the battle, but he won the war. Had he decided to issue the writ of mandamus, he would have risked the Court’s decision being undermined by the new President Thomas Jefferson. Thus, John Marshall acted strategically, manipulating the law to establish the power of the Court long term.