There have been some great landmark Supreme Court decisions: Marbury v. Madison, Brown v. Board of Education, U.S. v. Nixon, and Lawrence v. Texas, to name but a few. And there have been a number of doozies. Among them: Plessy v. Ferguson, Dred Scott v. Sandford, Korematsu v. United States and Citizens United v. Federal Election Commission. This week’s Hobby Lobby decision now joins the ranks of the worst ever. It will be soon regretted and someday overturned.
What the court declared in its 5-4 Hobby Lobby decision is at once uninformed, unenforceable and blatantly unconstitutional. The majority opinion, written by Justice Samuel Alito and agreed upon by Chief Justice John Roberts and Justices Scalia, Kennedy and Thomas, drones on for 49 pages. It can be summed up in one sentence: “Some” business owners can now use their religion as an excuse to break “some” laws.
In this case, ruled the court, because David and Barbara Green, owners of Hobby Lobby, a Christian-owned craft supply chain store, believe that four methods of contraception, mainly intrauterine devices and morning-after pills, are a form of abortion, they can refuse to provide coverage for those kinds of contraception under their company’s health-care policy, as required by the Affordable Care Act. Their religious beliefs, in other words, allow them to discriminate against women who work for them.
It does make you wonder: Did these guys really go to law school? And do they have any idea how the real world works? You don’t have to be a Harvard lawyer to shoot holes in their argument.
For starters, there’s no way the green light for discrimination in the Hobby Lobby decision can be confined to “some” companies only. According to a 2000 study by the Copenhagen Business School, roughly 90 percent of all American companies are, in fact, so-called “closely held” companies, like Hobby Lobby. The Huffington Post identified 86 companies that have already indicated they’re going to take advantage of the court’s decision in order to discriminate against their own employees.
Nor is there any way the court’s decision can be limited to four specific types of contraception. As Justice Ruth Bader Ginsburg so forcefully queried in her 35-page dissent to what she called a decision of “startling breadth,” what if an employer’s sincerely held religious beliefs were offended by “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids and pills covered with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?”
Equally startling is the majority’s cavalier attitude toward both religion and government. Alito says he accepts for the sake of argument the government’s assertion that contraception’s a vital element in women’s health care. Well then, asserts the majority, if it’s so important, let the government pay for it. But, of course, that’s not how private insurance works. That’s how government-run, single-payer insurance works.
They’re equally cavalier about religion. Simply because the Greens “believe” an intrauterine device is an abortifacient – even though the vast majority of scientists disagree – they’re allowed to break the law and discriminate against their female employees. There’s no test for truth, science, or facts. Not even all Christians believe that. But from now on, any crackpot with any religiously grounded belief, no matter how delusional or dangerous, has a license to break the law – in the name of religion.
Indeed, those narrow-minded religious zealots who see this as a victory for religious freedom have it backward. The Hobby Lobby decision is not a blow for religious freedom, it’s a blow against religious freedom. Because it allows one person to force his religious views, misguided as they may be, on others – which is exactly what the First Amendment was designed to prevent.
You celebrate the Hobby Lobby decision today? Just wait until the same argument to discriminate is made by some imam to enforce his “religious” beliefs in Shariah law. Force all female employees to wear a burka? Under this ruling, he already has a green light to do so. What’s good for the preacher is good for the imam.
There is one bit of good news, however – if you happen to be a male employee of Hobby Lobby. Because, while the company will no longer provide coverage for certain forms of birth control, it will still cover vasectomies and Viagra. Men, in other words, are allowed to have recreational sex, but not women. So say five Catholic men on the Supreme Court. God help us.