I think that Megan McArdle’s most recent post makes a valuable contribution to the discussion of the Supreme Court’s decision in the Hobby Lobby case:
I think a few things are going on here. The first is that while the religious right views religion as a fundamental, and indeed essential, part of the human experience, the secular left views it as something more like a hobby, so for them it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts. That emotional disconnect makes it hard for the two sides to even debate; the emotional tenor quickly spirals into hysteria as one side says “Sacred!” and the other side says, essentially, “Seriously? Model trains?” That shows in Justice Ruth Bader Ginsburg’s dissent, where it seems to me that she takes a very narrow view of what role religious groups play in the lives of believers and society as a whole.
The second, and probably more important, problem is that the long compromise worked out between the state and religious groups — do what you want within very broad limits, but don’t expect the state to promote it — is breaking down in the face of a shift in the way we view rights and the role of the government in public life.
I recommend you read the whole thing.
I think that Ms. McArdle’s explanation is incorrect and that, as I’ve suggested in the past, there’s a more basic disagreement about the nature of law. For some rights and laws are strictly instrumental. When they don’t further the preferred policy they are to be set aside.
In my view our system is one of principles and processes; in the contrary view it’s one of policies and coercion. When you disregard precedent and blackletter law to further your preferred policies, “you can’t make an omelet without breaking eggs” becomes the whole of the law.