Jennifer Branch is a partner and civil rights attorney at Gerhardstein and Branch. She participated in a Back-to-Back on the Hobby Lobby decision with Chris Finney on March 31st.
When Beyond Civility asked me to switch sides on the Hobby Lobby decision for a Back to Back program I hesitated. I was swamped at work and just wanted to say no, but I set aside my initial reaction. I realized my real hesitation was not the time it would take to prepare or even the intellectual challenge of switching sides to argue for the conservative position and against women’s reproductive rights. In order for me to successfully argue for the conservative position I would have to believe in it. I did not think I was capable of doing that.
The federal law at issue – the Religious Freedom Restoration Act – was a good law I have used in my practice. But I believed the Supreme Court’s decision in Hobby Lobby balanced religious rights in a way that undermined women’s rights. How could I persuasively argue otherwise if I did not really believe in the words I was saying? I have had the luxury of being able to represent clients and make legal arguments I believe in. But I accepted the challenge. I did not really have to believe in the Hobby Lobby decision, I just needed to articulate the decision and reasoning. As a litigator I can do that. I enjoy thinking of the facts and law from my opponent’s point of view – that is how I prepare my cases.
I did not enjoy collecting opinion pieces from conservative news outlets and websites. I had never visited the Heritage Foundation website in my life. But, as I embraced the challenge, I felt I was representing the co-founder of Hobby Lobby, Barbara Green and her family. The Green family operated a business that respected its 28,000 employees, mostly women. I was able to go beyond intellectually understanding their position and could feel their dilemma: compromise their religious beliefs or face government fines? For me, humanizing the “opposition” helped me switch sides.
I plan to carry this lesson forward. Because I advocate for LGBT and women’s reproductive rights at times I am engaged in tense discussions. Next time I will try to humanize my opponents so I can respect their opinions. If we all do the same maybe it will lead beyond civility to understanding and perhaps even finding common ground.