The most cynical, long-running play in the world

“All the world’s a stage, And all the men and women merely players. They have their exits and their entrances, and one man in his time plays many parts.” — William Shakespeare, “As You Like It,” Act 2, Scene 7

So a bill aimed at reversing the decision in Burwell v. Hobby Lobby Stores, Inc. failed to advance in the Senate today by three votes. (Senate Majority Leader Harry Reid is listed as voting “nay,” but switched his vote from “yea” in a procedural move that will allow him to bring the bill up again in the future.)

It’s debatable whether the bill — S. 2578, also dubbed the Protect Women’s Health from Corporate Interference Act — would actually serve to override the court’s ruling, which held that the owners of closely held corporations may not be required to provide insurance coverage for contraception that violates their sincerely held religious beliefs.

The bill reads, in Section 3 (“Findings”), that “This Act is intended to be consistent with the Congressional intent in enacting the Religious Freedom and Restoration Act of 1993,” and also provides that a requirement to cover all forms of FDA-approved contraception “…shall apply notwithstanding any other provision of federal law, including Public Law 103-141 [the RFRA].”

But this bill is clearly not consistent with the RFRA; it would still require religious corporate owners to provide contraception that they claim is equivalent to abortion, which offends their sincerely held religious beliefs. And it would still set up yet another case in which the Supreme Court would have to determine whether its requirement to cover contraceptives is consistent with the RFRA, which provides that the government must use the least restrictive means possible when substantially burdening the free exercise rights of people (now defined to include closely held corporations).

Put another way: If a regulation issued by an executive branch agency was struck down under RFRA, does the Senate majority really think a law saying the exact same thing will survive court scrutiny?

But here’s a more important question: Do they even care?

Reid and the Democrats in the Senate had to know the bill was going to fail. Although they attracted three Republicans to their side (U.S. Sens. Lisa Murkowski of Alaska, Susan Collins of Maine and Mark Kirk of Illinois), every other Republican in the chamber voted against it (including Nevada’s Dean Heller). Given the fact that they knew the bill would fail, why did the majority hold a cloture vote at all?

Because Democrats win either way.

If the bill had attracted just two more Republican votes, it would have passed, which would have allowed Democrats to claim they led the way in rebuffing an all-male Supreme Court majority that struck down a regulation that benefits women. But if the bill failed, as Democrats surely knew it would, they could claim the Republican majority was blocking women’s health.

Which Reid totally did, in his statement on the issue:

“Today, Senate Republicans blocked legislation that would have made it illegal for any company to deny their employees and dependents specific health benefits required by federal law, like birth control. Senate Republicans continue to demonstrate that they are out of touch with women across America. Just last week the Republican Leader declared that ‘most of the barriers have been lowered’ for women. Today, despite overwhelming evidence to the contrary, Republicans are insisting that the disastrous Supreme Court decision in Hobby Lobby – which allows corporate bosses to deny employees and their dependents contraceptive coverage without any cost-sharing – does not impact women’s access to birth control. Despite Republican obstruction, Senate Democrats will keep working to end this type of discrimination against women.

“We cannot allow Congressional Republicans or five men on the Supreme Court to reverse measures that have improved women’s access to affordable health care, including contraception. I authored bipartisan legislation – which is now law – that requires contraceptive coverage for federal employees. I have long supported increased funding for Title X and expanding family planning benefits under Medicaid in order to reduce the rate of unintended pregnancy and improve women’s health – all while lowering health care spending. And thanks to the Affordable Care Act, over 30 million women in Nevada and across the country recently became eligible for expanded preventive services coverage without any copays or deductibles. We will continue to stand up to ensure that a woman’s boss cannot interfere with her personal health care decisions.”

How long will we have to wait until we see the inevitable fundraising missive — “Help Democrats fight the heartless Republican crusade against women! Give $20, $30 or $50 now!”

Don’t feel too badly for the hapless Republicans, who once again find themselves on the wrong side of an issue. They, too, will be able to use their votes to raise from from their base: “As Senate Democrats demonstrate how little respect they have for religious freedom, brave Republicans stood up to Harry Reid and a biased media and in favor of traditional values! Help us keep up the fight by sending $20, $30 or $50 now!”

In this sense, it can be said that everybody wins, so long as you define “everybody” as politicians of both parties and the professional staffers who help create these little dramas that keep the country in fine dander — the perfect mood in which to hit them up for cash. And they call pundits cynical.

Don’t get me wrong: Reid and the Democrats are absolutely correct, in that people should not be able to use religious faith to assert exemptions to generally applicable, non-discriminatory laws. (And that’s especially true, in my view, when they act under the guise of legal fictions known as corporations.) To allow otherwise would, as U.S. Supreme Court Justice Antonin Scalia so helpfully reminded us in the pre-RFRA case of Employment Division, Department of Human Resources of Oregon v. Smith (1990), create chaos: “Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” (quoting Reynolds v. United States, 1879).

But even if today’s theater — and with the outcome known to everyone, it was definitely theater — was motivated by a true desire to help women or to right a wrong created by the Supreme Court, it still cannot help the Democrats escape the blame for exploiting the situation for political benefit in an election year in which their continued majority may be threatened. Why? Because the real blame for Burwell v. Hobby Lobby lies with RFRA, a fact as plain as the Capitol dome at high noon on a clear day.

It would be one thing if Democrats mounted a serious bid to repeal the RFRA, or, at the very least, to excise its language requiring the government to use the “least restrictive means” possible when substantially burdening the right to freely exercise religion. It would be one thing if they found the political courage to take on a law that passed nearly unanimously in a fit of pandering to faith-based voters, and was swiftly signed by then-President Bill Clinton. At least then they could honestly tell their supporters that they were doing something that would solve the problem, once and for all.

Ah, but that would be a tactical error, one that would allow the equally cynical Republicans to portray the Democrats as “anti-religion,” by which they mean, “anti-Christian,” and to campaign against them on that basis, even though Republicans know full well this has less to do with true religious practice, and everything to do with governing an officially non-sectarian nation.

Instead, by trying to pass a bill that may, or may not, pass court muster, a bill they obviously knew would fail (and, even if it did pass, would be dead on arrival in the Republican-controlled House), Democrats forfeit even the benefit of the doubt for good intentions. They’ve played to the hopes of their supporters nationwide, and will no doubt soon ask for money as a result, while ignoring for political reasons the only real, permanent, constitutional solution.

All the world’s a stage, and the senators merely players.