Jeffrey Rosen wrote a very interesting article in New Republic, The End of Anti-Discrimination. It is about the Hobby Lobby and Conestega Woods cases that the Supreme Court is hearing. But they deal with an issue that has been much on my mind: where does it stop? If a company can say that it ought to be allowed an exemption against providing birth control in its health plans, I don’t see why a Christian Scientist employer couldn’t say it is only willing to provide prayer for its employees’ healthcare needs.
The article goes one step further. As Rosen notes, both cases “will force the justices to confront the future balance between the First Amendment on one hand and anti-discrimination laws on the other.” The article is based upon a podcast between two lawyers on each side of the case who nonetheless agree that this is the issue. The article isn’t this blunt, but I think it is important to be clear. A Christian hotel owner could say, “The Bible says that the races should be separate. Most of my guests are white. So I won’t provide accommodations to blacks.”
I don’t see this happening. What the court will most likely decide, if it finds in favor of these companies, is some principle that will limit the ruling. But it doesn’t have to be that way. In Citizen’s United, the courts just brushed away such concerns. And here, they might say, “Sure, people could use this law to discriminate, but that isn’t going to happen.” You never know with this court. It has, after all, three justices who are little more than right wing partisan hacks. You have two justices who are extremely conservative. Three justices who are moderate. And one justice who is somewhat liberal. That’s a recipe for bad law. And bad law we have been getting.
But even if we do get a very limited ruling, it will be very bad. It will set up a structure for more and more businesses to use their legal rights to punch holes in workers’ rights generally. But the issue is much bigger than that. This whole push of the Supreme Court to codify business rights as equal to individual rights brings on nothing short of the end of democracy. As we’ve seen over the last hundred years at least, the powerful can manipulate the political process as surely as a puppeteer controls a marionette.
In the short run, I’m very concerned. The rich have managed to acquire almost all of the wealth in this country. And now they are trying to corner the market in power. Or maybe they already have, since both political parties are beholden to them and the courts are firmly in their pockets. Whether they can completely disenfranchise the people at the ballot box remains to be seen. I’m not at all sure they can’t. So in the long run, I’m also very concerned.
There is a “bread and circuses” aspect to modern America. The power elite have been pretty good at allowing the middle class to be savaged, but still limp along. At the same time, there are more than enough circuses. But I fear that one of the biggest circuses for my fellow liberals is social liberalism itself. That stuff doesn’t harm the power elite because mostly they too are social liberals. And they keep us all focused on these relatively minor (high up the hierarchy of needs) issues so we don’t do anything about the fact that we live more and more in squalor.
H/T: Ed Kilgore