Last week, with the unanimous decisions, I thought, “Oh God! That was probably done to make the coming highly controversial 5-4 decisions more acceptable.” That looks like it is the case. I assume that it is John Roberts who decides when decisions are released. And it should dispel any idea that you may have that the Supreme Court is anything but an extremely political organization. The most upsetting decisions today was Burwell v Hobby Lobby. In it, by a 5-4 majority, the Court found that “closely held” companies that are owned by religious people have a right to not provide birth control as part of their employee healthcare coverage.
If you look at the logic of the case, this really should be applied to everything. The Jehovah’s Witnesses do not believe in blood transfusions. By the logic of this decision, a Jehovah’s Witnesses employer ought to be able to withhold blood transfusions from the insurance coverage offered to their employees. But that’s not what this decision (pdf) finds. Alito’s decision even says, “This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, eg, for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.” In Kennedy’s concurrence, he begins, “At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.”
The question is, “Why?” There really is no reason. What seems to have been done is that the Supreme Court wanted to allow Christian conservatives to make their stand against birth control and so they worked back from that. It reminds me above all of Bush v Gore. In that case, the Court found that George W Bush’s due process rights were being violated, but it was only George W Bush’s rights who were being violated and if a similar case ever came up, Bush v Gore could not be used as a precedent. Just like in that case, in Burwell v Hobby Lobby, the Court majority is doing what can only be call judicial legislation. It just created a law that more or less says, “Closely held religious companies have the right to discriminate against their female employees with regard to the existing law that says that all insurance policies must include contraceptive coverage.” This is not “judging”; this is not calling balls and strikes; this is legislating, pure and simple.
The conservatives on the bench are not idiots. They know that they can’t just say, “If an employer is religious, he doesn’t have to follow any law that goes against his conscience.” That would allow religions they don’t like to gain more power. Rastafarian employers might claim that all of their employees ingest cannabis. But even those Jehovah’s Witnesses: they can’t be allowed to sully the important legislative work being done by the conservative Christians on the Court: creating a special theocracy for their religion and their religion alone.
Ginsburg’s dissent is kind of amazing. Alito spent most of his decision arguing that the finding was minor. He said it wasn’t a broad decision. Kennedy backed him up. They were using a scalpel, for God’s sake! She brooks no such fantasy. Ginsburg goes right at the blood transfusion issue. She notes that this case doesn’t apply to blood transfusions and other silly religious complaints against modernity, but that it also doesn’t rule them out. The courts, apparently, are just supposed to deal with them as they come up. The majority decision certainly makes a Jehovah’s Witnesses employer’s contention that he shouldn’t have to provide coverage for blood transfusions reasonable, even if it doesn’t state that such exceptions should be made.
This brings up a number of practical points. Won’t this open the floodgates to different religions employers going to court trying to get their specific exceptions? Even more important in my opinion is how this will give more power to big employers who have a lot of financial resources. A small business, which may be owned by someone of even greater conviction, will have a harder time even taking a case to court. And then it will only get anywhere if it can hire a good constitutional lawyer. So in addition to everything else, the Supreme Court yet again has decided that the rich and powerful should have more resources in politics. Brilliant.
Ginsburg ends by making a point that should shock the entire country. She writes:
In other words, the majority decision will necessarily place some religions above others. With minor exceptions, Christian Scientists don’t believe in modern medicine at all. It is certain that the courts will find that this does not give Christian Scientist employers the right to withhold medical coverage altogether. Thus, the government will not be treating all religions equally. They will be claiming certain sects of Christianity are better (More true!) than others.
Think about that. In this one decision that was made by a bunch of conservative Christians in the interest of a single major concern of that group, the majority has set the stage for the government to treat some religions differently than others. We might as well have an official religion at that point.