Tuesday, July 1, 2014

Supremes' Hobby Lobby Decision — Celebrating: Catholic Bishops, Right-Wing Evangelicals, Corporate Leaders, Men and More Men; Not Celebrating: Most of the Rest of Us

In the highest court in the land, five Catholic men issue a judicial ruling that hands a victory to the Catholic bishops of the U.S. (and the Vatican), as well as to the right-wing evangelicals with whom these bishops have made common cause in their battles against the rights of women and LGBT people. Naturally, Catholics who stand with their bishops in these battles are now rejoicing, as are right-wing evangelicals. 

At blog sites representing the "center" of American Catholic discourse, centrist Catholic academic and journalist types are ponderously parsing yesterday's ruling, finding all kinds of hope in it, as they natter on about "triggers" (one of their favorite words when these topics are discussed), and how "powerful interests" (read: the half of the human community not endowed with penises) want to pressure everyone else to do what "the culture" (read: Catholics who think like these Catholic men) does not want to do, when it comes to women's rights and women's healthcare needs. 

(Never mind that at the very same time that Michael Sean Winters pontificates about how "the culture" supports the Catholic bishops in their war against women, the very same journal in which he is publishing these remarks is carrying an article by Lauren Markoe and Cathy Lynn Grossman of Religious News Service that states, "The American people would have ruled differently." Markoe and Grossman cite a Kaiser Health Tracking poll this past April that shows the American public supporting the Obama administration's contraception mandate by a 2-to-1 margin.)

So, celebrating the decision of the five Catholic men on the Supreme Court: the U.S. Catholic bishops; the evangelical right wing; the men who own and run corporations; right-wing politicians like Ted Cruz; gay bashers like Peter LaBarbera; many men in the powerful Catholic academic and journalistic commentariat who claim to be "centrists." Not celebrating: just about the rest of us. Here's commentary from those "rest of us": 

In fact, I would argue, as a lifelong Papist, that this decision is nothing if it is not the clearest effect of having three conservative RC's on the Court at the same time and, as such, it has privileged conservative (and politically active) Christianity over all other forms of religion, including other forms of Christianity itself.

This is not a ruling that upholds religious liberty. It is a ruling that specifically enshrines opposition to abortion as the most important religious liberty in America. 

But as the decisions on Monday showed, the reality is that the Roberts court is as political as ever. In Roberts' court, it’s not abstract ideas of justice and law and republican government that win the day — it’s corporations, religious conservatives, employers and anyone who worries first and foremost about the interests of the powerful and the elite. 

Not only do corporations have rights, their rights are stronger than yours.

Even if you worry about religious liberty, why does religion in 21st Century America always seem to be about policing the sex lives of everyone but straight men? 

Hobby Lobby -- now free to drop emergency "morning after" pills and intrauterine devices from its workers' health insurance plans -- has given no indication that it plans to stop helping its male employees obtain erectile dysfunction treatments.

The Court's decision displays the profound depth of patriarchal norms that deny women autonomy and the right to control our own reproduction—norms that privilege people's "religious consciences" over women's choices about our own bodies, the welfare of our families, our financial security and our equal right to freedom from the imposition of our employers' religious beliefs. 

After a lot of anxious waiting, we now have two Supreme Court decisions that more or less amount to the justices (or most of the justices) giving the middle finger to women. 

But the way the Court singles out women's health care is dangerous and discriminatory. "It’s really a case of exceptionalism when it comes to women and to reproductive rights and to equality," said Louise Melling, deputy legal director of the ACLU.

The 49-page majority opinion mentions "women" or "woman" a mere 13 times (I've excluded footnotes and URLs here). It does not mention women's well-being once. 
Ginsburg's dissent, at 35 pages, mentions women (singular or plural) 43 times, their well-being four times.

Justice Ruth Bader Ginsburg via Joshua McElwee:

"The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations' employees and covered dependents," Ginsburg wrote. "It would deny legions of women who do not hold their employers' beliefs access to contraceptive coverage that the [health care law] would otherwise secure."

In conjunction with the special solicitude for corporations, the majority seems to have a special antipathy for contraception. Its ruling, the majority insists, is narrowly limited to the case at hand: a challenge to the contraception benefit requirement. 

Large corporations already wield enormous power over ordinary Americans, and the far-right Justices have just handed them another way to exercise that power. 

"For the first time in our Nation’s history," said CAC President Doug Kendall, "the Supreme Court has ruled that for-profit corporations have religious rights and have accorded them religious exemptions. Despite their attempts to qualify that ruling, it opens the floodgates to claims by corporations for religious exemptions."

The New Testament never—not one time—applies the "Christian" label to a business or even a government. The tag is applied only to individuals.

And while the decisions could have been even worse from a progressive standpoint, the cases have handed long-sought political victories to some of the most extreme elements of the American right—the John Birch Society, tea party groups, think tanks like the Heritage Foundation and the Cato Institute, Christian fundamentalists, and, especially, the shadowy network of behind-the-scenes political manipulators and financiers led by activist billionaire brothers Charles and David Koch.

In the end, in both Harris and Hobby Lobby, the Roberts Court is doubling down on the mistakes it made in Citizens United, saying that corporations can pray and that the business community and its allies can use the First Amendment to unsettle well-established precedent and flout important federal laws and regulations. 

In this ruling, the fundamental distinction and separation between a commercial enterprise and a specifically religious or "ecclesiastical" corporation has been fatally breached. We can expect other large commercial enterprises to start donning ecclesiastical robes when it suits them to do so. 

Justice Samuel Alito, writing for the 5-4 majority, said the ruling is limited to the forms of birth control challenged in the case, noting that it doesn't "necessarily" let religious business owners refuse to cover vaccinations or blood transfusions. But the Court opened the door to such lawsuits by ruling, for the first time, that for-profit corporations are persons who can practice religion for the purposes of the 1993 Religious Freedom Restoration Act, which imposes strict scrutiny standards for laws that substantially burden religious practices.

Rachel Maddow (video link):

Today's ruling says that it only applies to this one case. It says that only the issue of contraception is subject to objections on religious grounds . . . . There's only religious exemptions from birth control rules. How does that make sense?

Almost any closely held companies—which make up a substantial chunk of the American economy—can now claim a religious orientation, and they can now seek to excuse themselves from all sorts of obligations, including honoring certain anti-discrimination laws. And after today's "narrow" rulings, those cases will come.

It's not just Hobby Lobby: these 71 companies don't want to cover your birth control, either.

If you think these corporations are going to stop at birth control, you’re kidding yourself.

By what reasoning do the five conservatives conclude that a Corporate Person’s objections to contraception are more legitimate than a Corporate Person's objections to blood transfusions? They never got around to explaining that. It's simply true because Alito says it's true. Maybe blood transfusions would also be in trouble if such a case reaches the high court in the future, maybe not.

Justice Ruth Bader Ginsburg via Brian Tashman:

Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g. Newman v. Piggie Park Enterprises, Inc (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration)…
[H]ow does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn't the Court disarmed from making such a judgment given its recognition that "courts must not presume to determine…the plausibility of a religious claim?"

Justice Ruth Bader Ginsburg via Dana Liebelson

Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today's decision.

Justice Ruth Bader Ginsburg via David Nather and Jennifer Haberkorn:

"Where is the stopping point to the 'let the government pay' alternative?" Justice Ruth Bader Ginsburg wrote in her dissent. "Suppose an employer's sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage."

Meanwhile, Aaron Blake notes something I mentioned last night: the court's metric of "closely held" – defined by the IRS as companies in which five or fewer individuals own more than half the stock – affects about 90 percent of all businesses and about 50 percent of all employees. 

Sen. Ted Crus, R-Texas and a former litigator before Supreme Court, also issued a statement, calling the decision a "landmark victory for religious liberty."
"Certainly, the struggle for religious freedom will continue, as cases made by hundreds more plaintiffs will wend their way through the courts. The right to religious liberty, as enshrined in the First Amendment, remains under an incredible assault by this Administration on a variety of fronts," he said. 

With respect to implications for other kinds of religious-based discrimination, the Court writes that racial discrimination in hiring will not be permitted under RFRA because "The Government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to acheive that critical goal." Note that this leave open the question of whether the Government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation. 

Though the ruling was narrow, applying only to privately held for-profit corporations, the opinion could be far-reaching in practice, effectively creating a mechanism for American corporations to flout the law in any number of areas, including the hiring and firing of LGBT people, simply because the person in the CEO’s chair believes differently from his employees.

Anti-gay activists are rejoicing at the Supreme Court's decision in Hobby Lobby today, in part because they are hopeful that the decision will pave the way for one of their own policy goals: to use the religious liberty argument to push for broad exemptions for corporations from nondiscrimination laws.

Given the gusto with which Republicans and conservatives dive into political fights surrounding contraception, the casual observer could be forgiven for assuming that the issue has been a winner for them in the past. The precise opposite is true. It’s toxic for the GOP.

The irony of today's ruling is that while it’s a terrible ruling, it doesn't help the Republican Party as its candidates pivot from primaries to general elections. Ever since the GOP took over the House of Representatives and various statehouses in the 2010 elections, and proceeded to act on its "jobs agenda" by going all-out to limit access to women's heathcare, the party has been pummeled in a key demographic: unmarried women.

Americans' confidence in the Supreme Court stands at 30% in the survey - the lowest since 1973 when Gallup started tracking confidence in the institution.

The graphic is from Adam Liptak in the New York Times. Clicking on the picture should make it larger.

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