Monday June 30, 2014, the Supreme Court of the United States published its decision in the Burwell v. Hobby Lobby case. Hobby Lobby craft stores had petitioned the court to be exempt from having to cover contraception in the insurance they offered employees. The suit claimed this mandate by the government in the implementation of the Affordable Care Act unduly interfered with the corporation owner’s rights of religious freedom. The Court, in a 5-4 decision, agreed.
Justice Samuel Alito, writing the majority opinion for the 5 men who upheld it, stressed that it was a “narrow” decision, only effecting “closely-held corporations,” and only effecting birth control coverage. Justice Ruth Bader Ginsburg wrote a sharp dissent (begins on page 60) taking issue with these caveats and other aspects of the decision. The dissent promptly went viral.
Songwriter Jonathan Mann came up with this catchy tune based on her dissent, although I’m pretty sure he ad libbed the “slut-shaming geezers” part 😉
Alito’s argument, in a nutshell, was that the Religious Freedom Restoration Act of 1993 (RFRA), intended to protect individual’s freedom of religious exercise unless contradicted by a “compelling governmental interest” that can be proven to be the “least restrictive means of furthering that compelling governmental interest,” applied to “closely-held corporations” as well as individuals. So, in other words, the “personhood” of corporations was not only affirmed by this court, but expanded. It was expanded because of the “sincere Christian beliefs” of the owners that conflate birth control with abortion.
Justice Ginsburg refuted the majority opinion point by point, warning of many unforeseen consequences:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs…
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…
Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community…
She notes women have historically faced obstacles and unequal burdens in accessing health care, and in general have been penalized because of their gender. The Institute of Medicine demonstrated quite clearly the health benefits to women and their families of including the contraception mandate in the Affordable Care Act, which is why contraception was included as preventive medicine in the first place.
Finally, she points out that the Court’s conservative majority has some problem separating Church and State in these cases:
The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.
Ginsburg directly challenged Alito’s insistence that this was a “narrow” opinion:
The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for ‘it seems unlikely’ that large corporation ‘will often assert RFRA claims.
And indeed within the week, the Court was called upon to issue a ruling on a case filed by religious educational institution Wheaton College, who found it a burden to have to notify insurers directly of their religious exemption granted under the Affordable Care Act. The Justices ruled that it was indeed a burden, despite the fact that Justice Alito, in his opinion filed just four days earlier, had said that that exact process was the answer for “closely-held” corporations, just as it was religious institutions. This time Justice Sotomayor, writing the all-female Justices’ dissent, blasted away:
Even assuming that the accommodation somehow burdens Wheaton’s religious exercise, the accommodation is permissible under RFRA because it is the least restrictive means of furthering the Government’s compelling interests in public health and women’s well-being. Indeed, just earlier this week in Burwell v. Hobby Lobby Stores, Inc., ante, at ___, the Court described the accommodation as “a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” Ante, at 3. And the Court concluded that the accommodation “constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” Ibid. Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position.
Terry O’Neill, President of the National Organization for Women (NOW), said in a statement:
Even if corporate bosses seriously believe birth control goes against their religion, there are some “beliefs,” no matter how sincerely held, that should simply not be respected by any government. A “belief” that works to the detriment of a specific demographic group that has historically experienced discrimination is no more than a religious mask for bigotry. The world has rejected the use of religion to justify racial and homophobic bigotry, and the same must be true for gender bigotry as well.
She noted that with this decision, the conservative Justices of the Supreme Court have “jumped into the War on Women with both feet.”
NOW chapters around the country organized Hobby Lobby location protests, and these are ongoing. To find out more about the other corporations involved in the Hobby Lobby suit, check out NOW’s “Dirty 100.” Take the pledge not the buy from these businesses that believe they have any right to dictate the reproductive choices of their female employees.