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.
Rachel Maddow’s segment on this decision started by pointing out the Supreme Courts historical record of rejecting this kind of religious exemption. They’ve ruled against religious claims for belief in slavery, segregation, polygamy and the use of peyote. All those precedents have been tossed out the window.
Although this ruling was obviously giving preference to a particular allegedly Christian belief, would it be rude of me to point out that it probably comports with Sharia Law.
Well, you knew this was coming. You just knew it. The plaintiff’s name was too damn catchy for this one to go down as another dumb, forgotten effort to break down church/state separation.
I recently had this misfortune of being placed, against my will, back into contact with my crazy father, who is on his usual blathering screed about how America is in so much trouble because we abandoned Jesus. I’m not sure when the aforesaid abandonment is supposed to have taken place (when Protestants decided that religion should be taken out of the classroom so they wouldn’t have to pay for Catholic schools?) or if Jesus, having been kicked to the curb by our socialist communist badthingist Big Gummint, will start smoking cigarettes and hanging with a loose crowd, now that he’s abandoned and alone. Next you know, he’ll be shooting pool and listening to those darky musicians who play that jungle music.
Of course, my serious response to this "America abandoned Jesus" meme (which my crazy dad shares with probably about 20% of the population if not more) is a mixture of pity and horror. Not everything, but damn near close to everything, that’s wrong with this country’s rule can be laid right at Jesus’s bleeding feet. (He died on the cross, you know. What a drama queen. If you want to do something noble, do it, but the nobility of any selfless act is erased immediately if you expect worship because of it.)
I feel pity because your life must be all kinds of empty if you feel the need to attribute its emptiness to the vengeance of a supposedly loving deity angered by not receiving the proper amount of civic fealty. (Doesn’t Jesus realize how lame, say, National Administrative Professional Day is? Or basically any of our holidays? Good grief, we devote one to his birthday and all it involves is children hating their parents for buying the wrong toys.)
I also feel pity because, if you get down with the Bible’s myths, there are stories upon stories of The God performing all kinds of miracle interventions to help its most devoted acolytes achieve wonderful success against crazy odds. (A theme in all religious myths; Mormons tell of magic bees that saved them, Hindus of magic monkeys, and so forth.) If you’ve crumpled your life into a sad little ball of nothing in service of this God, and it chooses to teach a lesson to humanity and treats you as collateral damage . . . well, I suppose you just aren’t Good Enough.
I’m terrified because I don’t see humanity getting out from under this awful shadow any time soon, or maybe ever. And I’m not, as you know, a Hitchens/Harris ideologue against spiritual feelings, an awe and perplexity in the presence of existence. But reflexive, dogmatic hate of The Other has been on the rise now, worldwide, for some time. Perhaps caused by our species having bent to breaking the limits of our drain upon the ecosphere. Or our ancient fear-of-everything programming. Or just cosmic bad luck. (If only McGovern hadn’t picked Eagleton . . . choose your point where we lost our chance as it suits you. Go back to the first sapiens to kill a neanderthal, if you wish.)
This bleaks me the hell out. And fuck John Roberts right in the ear.
Not another dime of my tax money for the military.
We have a very well armed militia, we don’t need bases in Uzbekistan.
Or is it that the court thinks protecting the life of the "unborn" has more religious imperative than "thou shalt not kill".
I know SCOTUS has ruled on this before, but it was before Hobby Lobby.
One part no one has mentioned is the majority of Catholics on the Supreme Court
Birth Control/ abortion/ female suppression is a key part of the catholic cult.
@Rick Fane – No, it would just be honest. It’s always been interesting that it is the fundamentalist Christians who so hate the fundamentalist Muslims. They believe pretty much the same things, including that it is often right to blow up buildings when you think God disapproves of what’s going on inside.
@JMF – It’s a strange thought, given that the US is about the most Christian country on the earth. Even if you only count the fundamentalists who think the earth was created in one literal day 6,000 years ago, you are talking 40% of the population. I would think God would look down fondly on us. Instead, God gives so much more love to those fake Christians in Sweden. What’s with that?!
I think if you go back further, it seems we are doing better. But the US government has gotten so good at killing, I’m not sure anymore.
@Feckless – It’s very clear that conservative Christians [i]do[/i] care more about the lives of the unborn than the born. Once born, it is fine to deprive food and healthcare and just [i]let[/i] them die. As long as the murder isn’t of the active kind.
@Ken – Yep. Scalia even drives an hour out of his way on Sunday to force his family to sit through a Latin mass. It’s important to hear the religion in the original language, even though it was Greek and not Latin. The point is that you not understand it!
It’s all about hatred and fear of women. The birth control pill is incredibly threatening to insecure men. Although you would think that clerics who are only interested in young boys wouldn’t care.
@Ken — Scalia is on record as having said the US Constitution is not a valid source of law, because it was created by men and not by God. You could bring back witchcraft trials or the Inquisition and Scalia would vote for them. And Thomas, of course, is nothing more than a parrot on Scalia’s pirate shoulder. Aargh, matey.
@Frank — Yeah, I was thinking of Scandinavia. But even there, right-wing politics are on the rise, and it’s religion/race-based. Sweden, Norway, and Denmark have been allowing political refugees from Muslim countries as immigrants, and, like busing here, that well-meaning policy has proven deadly to the left. People who never go to church except for baptisms, weddings, and funerals are squawking about losing their "Christian identity." Politicians run against immigrants, then go on a rampage, once elected, privatizing public services, deregulating industries, removing worker protections — the standard pattern. They’re still only half as backward as we are, but they’re catching up fast. With saviors like the Jesus, who needs the devil?
@JMF – I disagree with you about Thomas. I’ve come to respect him more than I have in the past. Of course, he’s vile. But he is a hell of a lot more consistent than Scalia. Scalia has turned into a crank. Of course, I think Scalia’s mind has started to go. Lifetime appointments were not meant for a time when conservatives lived past the age of 60.
I don’t understand why we don’t get true populists: social conservatives and economic liberals. If I had that option, I would probably vote for them. As it is in the US, both parties are economically conservative so of course I vote Democratic. Populism would be a good contrast with Libertarianism: social liberalism and economic conservatism. (Note: the Republican "Libertarians" are actually social conservatives too!) That would at least provide some choice.