The Hobby Lobby Ruling Is A Slippery Slope That Will Affect More Than Contraceptives
If you haven’t read Justice Ginsburg’s dissent in the Hobby Lobby case you really should. She makes excellent points – points that demonstrate how this ruling will extend beyond contraceptives.
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.
She’s correct, of course. No matter how the majority opinion tried to limit this ruling to controlling women (and Alito didn’t even bother to explain why this ruling was limited) it opens the door to every company’s “sincerely held religious beliefs”. How could it not?
What other laws could a corporation opt out of due to their religious beliefs? Could they cite their religious beliefs to pay men more? Could they refuse to hire homosexuals due to their “sincerely held religious belief” that homosexuality is an abomination before the eyes of their god? Why not? Seriously, why not? Go read the ruling and show me (other than Alito saying so) why this ruling couldn’t be applied to other sincerely held religious beliefs.
And you know this is coming. No matter how much the 5 conservative men on the Supreme Court put their fingers in their ears and went, “Lalalalala! We can’t hear you! This only affects contraception!” we knew, as soon as the ruling was handed down, that religious groups lawyered up. Which will leave the Court with the option of acknowledging all “sincerely held religious beliefs” or ruling that all religions aren’t created equal, thereby establishing a… national religion?
Ginsburg Points addresses this:
Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear, has wandered into a minefield.
The ruling states that this only applies to certain contraceptives (for now, because we know they’re coming for the Pill next, since Plan B is the flippin’ Pill. And if you “believe” Plan B is an abortifacient then you believe the Pill is as well. You’d be an idiot who doesn’t understand the science behind contraceptives, but the Hobby Lobby case showed that science and facts don’t matter. Only beliefs matter – even when they’re wrong.), but how is applying this ruling only to contraceptives possible unless the Court only recognizes Hobby Lobby’s religion? There are religions that don’t believe in blood transfusions, vaccinations, HIV treatments, etc.. Are their beliefs not sincerely held? Are they not considered “real” religions?
Talk about a slippery slope, and Ginsburg is correct, we have wandered into a minefield that extends far beyond contraceptives.
Tags: contraception, Featured, Hobby Lobby, SCOTUS
I’m going to go back to my comments re: the so-called “conscience clauses” for pharmacists who didn’t want to fill birth control prescriptions. What do you say when the Muslim cashier insists on having a line that is free of pork products?
The minefield here is that SCOTUS is presuming that the US is a fundamentalist Christian nation, and has opened the door for all kinds of fundamentalist BS to get enshrined in civic life. Not exactly what the framers had in mind, as Justice Ginsburg notes.
Oh yes, and more of the hypoicricy parade — 5 sexual health services insurance will cover… for men.
Alito’s writings are nuts. Basically he says, “This only applies to women and contraceptives because… I said so!”
“Good luck with that,” whispers the religious groups lawyering up.
And Cassandra is correct. Why couldn’t a Muslim cashier refuse to ring up customers with pork products. Alito, and his band of merry men, isn’t fit to sit on the court. This is a disaster. Should be interesting to watch this play out.
*crosses fingers for the first Pastafarian business owner challenge*
Well, V, as long as they hold sincerely religious beliefs…
Yesterday the SCOTUS set precedent. The fact that Alito, and his band of merry men, don’t get that is stunning.
Know what else is interesting? How liberal/progressive men avoid these posts. Guys, your silence is a BIG part of the problem.
The only silver lining I can think of is that as conservatives force more Americans to live under their dictates, the more likely it becomes that the rest of us rise against them.
True, Geezer, but don’t count on liberal/progressive men to rise up. Their silence, on a liberal/progressive blog, is speaking. 🙂
You are the exception. I enjoyed speaking with you today.
The Court did not enact the Religious Freedom Restoration Act. In fact, the Court, in an opinion written by Scalia and joined by Rehnquist, White, Stevens, and Kennedy, rejected the analytical regime that the Act revived. Employment Division v. Smith.
You blame the Court, but you should blame Congress, which voted overwhelmingly to pass the Act. Only three Senators voted against the Act: Jesse Helms (R), Harlan Mathews (D), and Robert Byrd (D). Democrats controled both Houses of Congress. Chuck Schumer (D) introduced the Act, and President Clinton signed the Act.
The analysis in Employment Division v. Smith was excellent, but most politicians and the liberal justices (Blackmun (author of Roe v. Wade), Brennan, and Marshall dissented) attacked the decision.
Fortunately (for liberals), the Court’s ruling is a matter of statutory interpretation. Liberals can amend or repeal the Act and therefore the undo the Court’s ruling.
Scalia made the decision that you want today almost 25 years ago. Blaming Alito and the other “conservatives” (which includes Scalia) is silly.
*sigh* Far be it for me to point out that Congress has already addressed this issue. Take it away, Justice Ginsburg:
So… not really silly, is it, Davy?
It’s a poorly reasoned decision, so naturally Davy likes it.
If it were well-reasoned decision, it would not have to be limited.
Gotta love law students! They’re so cute! 😉
I agree that Hobby Lobby the decision is troubling.
But . . . for all of the sky is falling discussion, Dave is absolutely correct. The Hobby Lobby decision, as written, rests on an interpretation of the Religious Freedom Restoration Act of 1993 (RFRA). Thankfully it does not rest on an interpretation of some constitutional right.
Change the RFRA – change the outcome and the parade of horribles will end.
As for men not getting commenting on this thread, speaking only for myself, you’d be nuts to get involved in this discussion. There is a decidedly hysterical tone to much of the writing and experience shows that hysteria is amplified the longer the discussion carries on.
You’re such a delicate, little flower.
@p “How liberal/progressive men avoid these posts. Guys, your silence is a BIG part of the problem.”
There was a key football match… and another at 4. It’s not like they’re/we’re posting in other threads and avoiding this one.
Not so little anymore – I could probably fill the entire lobby of a Hobby Lobby store. Some days I look like I should have used birth control.
Definitely delicate.
First, just as a bill is not a law, a vote on an amendment to a bill is not a law. Further, the legislative history of the Affordable Care Act and the Womens’ Health Amendment is irrelevant (or almost irrelevant) to what the Religious Freedom Restoration Act states. The RFRA’s meaning does not change absent an amendment. This is why this statement is not the “meat” of Ginsburg’s argument: the statement is part of her preface or introduction.
Second, the rule in Employment Division v. Smith would apply but for the RFRA. Under Smith, a neutral law of general applicability is constitutional even if the law burdens the exercise of religion. The contraceptive mandate is constitutional under this rule, just as the peyote prohibition in Smith was constitutional. Ginburgs performs this analysis in her dissenting opinion before she confronts Hobby Lobby’s claim under the RFRA.
Third, Ginsburg desperately wants Scalia’s rule from Smith to apply but recognizes that Hobby Lobby argues its claim under the RFRA, which created a statutory right to an exemption from a neutral law of general applicability. The government may deny the exemption only if there is no less restrictive means to further the compelling interest, here access to care deemed essential to womens’ health. The government lost because there is a less restrictive means: a parallel program already exists for religious non-profit and charitable organizations. Alito reasons that this program can be adapted to serve for-profit closely held corporations as well. Here, Ginsburg’s argument falls flat because the government has already provided an alternative, as Alito pointed out.
Fourth, at what point is ownership of a business so diffuse that the owners’ religious beliefs are immaterial to the business’s operations? Would a sole proprietor have standing under the RFRA? Yes, under constitutional precedent set before Smith. Would a limited partnership have standing under the RFRA? Unkown. The Court’s answer that a closely-held corporation has standing makes sense once you understand that ownership of such a corporation is generally not diffuse.
Fifth, this decision does not limit Smith, which is well reasoned. Congress limited Smith. This decision interpreted the RFRA correctly. I understand that nuance is lost on you Pandora, but there is a difference between good reasoning and the right result. Putting aside the result, the reasoning in Hobby Lobby is good. The problem is that Congress passed a misguided law. For this reason, your recourse is through the legislative process.
Finally, considering Ginsburg’s argument against the decision IS a specfic application of Scalia’s reasoning in Smith, you should agree, at minimum, that Scalia’s reasoning in Smith is correct.
Setting aside Alito or Ginsberg’s reasoning, there is a fundamental disconnect here.
If someone goes into business to sell to the public, then they must accept the business of dealing with the public. If the business of selling to the public is so patently offensive to your religious beliefs, then get out of the business of selling to the public.
The irony, at least to me, is that Hobby Lobby’s religious beliefs permit it to deny employees coverage for certain medical/drug treatment, but don’t think for a single moment that the good folks at Hobby Lobby won’t sell merchandise to those same heathens.
Apparently, measuring moral offense of deeply held religious beliefs has a debit/credit quality about it. I suppose their bible makes it okay to make money off of the heathen but not to spend it on them.
I’m still trying to figure out where the owners of Hobby Lobby found their long-standing, deeply felt religious scruples.
They order massive amounts of cheap product from China, where the State actually enforces abortion as population control.
They invest in a portfolio that includes manufacturers of some of the products they object to.
They accept the cash and credit cards of anybody (whore or not) who walks into the store and lays it down (yes, pun intended) by the cash register.
It seems that the only group of people that Hobby Lobby’s owners actually feel a deep religious obligation to is the women who work for them.
Aside from the fact that nobody has yet explained precisely how a corporation (“closely held” or not), being a business organization and not a person, can have religious scruples in the first place.
“Know what else is interesting? How liberal/progressive men avoid these posts. Guys, your silence is a BIG part of the problem.”
Every time this liberal/progressive man expresses his actual opinion here, he gets to read a million things wrong with it.
This ruling sucks. It isn’t just bad for women, but any non-Christian. hows that?
I mean really. do you think Antonin Scalia gives a garlic-infused fart what any of us men-folk think about you lady-folk? As if a phone call from Jason or DD could have tipped the scale.
“True, Geezer, but don’t count on liberal/progressive men to rise up. Their silence, on a liberal/progressive blog, is speaking.”
Wow, way to be passive aggressive.
Concerns/info on slippery slope, 401k hypocrisy, buying from China, male insurance coverage, et al, have already been posted. What else is there for a white male liberal/progressive to add?
LOL! Gotta love the reactions from #notallmen. 😉
Why are there no men posting their outrage here?
Oh there they are, (laughs at them)
No need to wonder why sometimes men don’t heed the call for help. Liberal/progressives included.
@Aint’s Taking it Any More:
Congress passed the law that required the ruling. The Court disclaimed this sort of analysis in 1990 (Scalia wrote the Court’s opinion), but Congress reimposed the pre-1990 protection as a statutory right.
@Steve Newton:
The Court is not permited to question the rationality or basis of the religious belief. If the belief is sincere, then it is accorded deference under the RFRA. This is true even if the belief is irrational or unreasonable. Both the majority and dissent agree on this point.
So apparently the justices came back today to say that this case really was about birth control:
SussexAnon:
Don’t equate the lack of expressed outrage here with why sometimes men don’t heed the call for help.
The discussion here on women’s issue too often devolves into an insanity laced hysteria – masked over by the occasion garlic-infused fart – for which the only sane male response is to stand on the sidelines and watch the show.
“Don’t equate the lack of expressed outrage here with why sometimes men don’t heed the call for help.”
I think you meant that for Pandora.
In spite of being the self-styled score-keeper for the female hysteria here, ATIAM often forgets the thread of the current conversation. A sign of an unreliable scorekeeper, usually.
ATIAM at 2:34PM: I see what you did there dropping “hysterical” and “hysteria” into a post on fundamental women’s rights in response to a female commenter on a female penned blog post.
Not cool. In fact, just dripping with misogyny.
Two words “hysterical” and “hysteria” used without reference, explicit or implicit, to any gender. Yet you uncover uncool misogyny. This is precisely why “hysteria” and “hysterical” aptly explain why people stay out of the conversation.
Have fun finding shadows in the darkness.
Let’s give ATIAM the benefit of the doubt this time. This ONE time.
ATIAM: this is why people tend to not like “hysterical/hysteria” in a conversation like this. Context is everything. The term “hysteria,” derived from the greek word for uterus, was originally a female-only mental illness.
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3480686/
*the more you knoooooowwwww*
yep.
1) This is another reason why we need to get rid of the tax exemption for employer based health coverage. There is no reason why health care insurance should be tied to employment. It’s merely an artifact of wage/price controls during world war II (most companies tried to find a way to entice workers to join their companies without the ability to increase pay, so they got around it by giving out health insurance) . A lot of these debates would not be an issue if big government stopped distorting the marketplace.
2) Why are most forms of birth control not over the counter? I could understand the health effects combined ocps (those with estrogen) have on older women who are smokers, factor V leiden deficiency, history of blood clots, etc., but for the heavy majority of women, combined ocps have little adverse effects. Also progesterone only pills have little thrombogenic effect and is much safer than a lot of pain medication found in a drug store. Again, big government regulation is the problem.
3) One point that is missed in a lot of this debate is that estrogen+/- progesterone pills are used for more than just birth control, they are used for dysmennorhea, Polycystic Ovary syndrome, entrometriosis, adenomyosis, etc. They even decrease the incidence of ovarian cancer. I wonder how the supreme court would rule in such scenarios.
Thank you. Learned something today.
ATIAM, a day well lived then. I strive for it each day. As with most I win some and lose some days by this guide.
Does this ruling mean I don’t get free rubbers?
Special props to the moron posting as Delaware Libertarian. Who cares if only a few women die because they shouldn’t be diagnosing themselves? Fuck Big Gubmint, hell yeah!
Asshat.
Geezer,
Where did I say that women should be diagnosing themselves? There are many instances in which physicians recommend to patients over the counter medications (anything from vitamins to ibuprofen to sitz baths) for diseases diagnosed in their visits. Why should OCP’s be any different? Allowing contraceptives to be over the counter takes the supreme court and the employer out of the decision making process.
By the way, my position is supported by American college of Obstetrics and Gynecologists too:
http://www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Gynecologic-Practice/Over-the-Counter-Access-to-Oral-Contraceptives
When you take oral contraceptives without consulting a doctor first, you are unaware of the dangers of doing so.
Did you read that link? It’s pretty weak recommendation.
If you want to go at this from a libertarian perspective, realize that the entire case came about because a couple of guys in the Pacific Northwest took peyote, got fired and claimed they took it as a religious exercise.
No drug war, no firings, no RFRA, no case.
I know we can’t change the past, but it would be only a little more unlikely than what you propose.
And here we go…
Anyone surprised?
pandora, it’s “fun” to note that if you click all the way back through to the original Atlantic story, where they publish the text of the letter, the signatories quote Barack Obama in 2008 to Barack Obama in 2014–remember when he said in the debate that marriage is between a man and a woman, and God is in the mix, and that he’s not going to push for same-sex marriage.
Of course, famously, he reversed course on that one in 2012 (I’ll stay silent on issues of political opportunism or Joe Biden pushing him into it), but it does create really interesting reading.
Here’s the thing: people always say to Libertarians, if you so strongly disbelieve in government, don’t take the services. I would say to religious organizations, if you so strongly disbelieve in drone-killing of children, don’t apply to be a government contractor.
Oh, wait, I forgot that a religious conviction against wars of choice and killing children doesn’t keep them from applying for government money, but disdain for queers does.
Unappreciated so far is the way the justices used a law passed to counteract their earlier ruling to again cause problems for those who passed it.
Whatever else they might be, conservatives usually are dicks.
One final point: There is a good argument that the RFRA is unconstitutional under the Establishment Clause because the Act treats sincerely-held secular beliefs differently from sincerely-held religious beliefs. This is, arguably, an establishment of religion.
Also, the Court did not wade into a minefield; Congress left the Court there.
For now, there is a presumption of liberty in favor of religion. This is a good thing. Unfortunately, to rebut the presumption, the government must carry a burden that is, in my opinion, too heavy generally. This is unfortunate. An affirmative obligation to provde a rational basis for a law is a better solution because the requirement, while not de minimis, is easy to satisfy. Under this standard, the contraceptive mandate would have survived the Court’s review.
Elena Kagan’s email at Page 29:
https://web.archive.org/web/20101121065920/http://clintonlibrary.gov/KAGAN%20E-Mail%20SENT/ARMS%20-%20Box%20009%20-%20%20Folder%20002.pdf#page=29
Cassandra wrote:
There’d be no way to work such a policy, as it would require pre-sorting by customers. However, would you agree that if a Muslim store owner did not wish to sell any pork products, he could simply decline to have them in stock? If his customers decided that that was too much of an inconvenience to them, they’d be free to take their business elsewhere.
Would a customer who demanded bacon at a Kosher market owned by an Orthodox Jewish family have a legitimate claim of discrimination because the Kosher market did not carry bacon?
Kosher markets sell bacon. Turkey bacon.
http://youtu.be/GY1TJ8JazkQ
Really didn’t want to get into this–because of the mandatory dog whistles that seem to get issued on any topic like unto it.
Sure…I do think health insurance should cover birth control unequivocally, as a public health issue.
However, the need to protect the outlier, long, standing and opposed on a very basic freedom this country is time-honored –religious freedom–is paramount to the very survival of our liberties, and NOT to be confused with, and victimized by a “different” core belief of consumer demand. Religious Freedom is in jeopardy here. Not the access, supply, disposition, or choice of birth control. Geez, let’s not throw out the baby, because some do the Big Ten, the Golden Rule, or Jiminnee Cricket. Birth Control is just one small iota EXCERCISED WITHIN RELIGIOUS FREEDOM–an excercise that doesn’t need mere consumer demand to protect or obliterate it. Insurance companies, the government, and individuals can work out the cost–not decimate the principle!
Get the religious freedom point but don’t see it implicated or at risk here.
The crux of the difference is that the exercise of religious freedom is not constitutionally protected beyond the individual’s exercise of it. So when Ms/Mr Hobby Lobby want to run their lives as good Christians, then the constitution protects their right to do that. On the other cheek, that constitutional protection ends the minute their exercise of that right imposes certain burdens on other persons.
The bottom line is that the Hobby Lobbys of the world can practice their religion, they just can’t make me practice it as well and especially in the face of neutral governmental law/regulation to the contrary.
The only reason this case turned out as it did was the Religious Freedom Restoration Act fundamentally changed the analytical calculus in two critical ways. First, it effectively overturned prior Supreme Court precedent and thereby placed religious practice on a pedestal above otherwise facially neutral government action. Second, the RFRA defines a person to include a corporation. As a result, for one person’s exercise of their religious conviction, others are denied a protection that the government has declared by law they are otherwise entitled to.
Just remember folks when fascism comes to this country it will be wrapped in a flag and carrying a bible
Religious Freedom is in jeopardy here.
No it’s not. And the minute there is a Muslim Hobby Lobby demanding exceptions you’ll get that.
@cassandra_m:
You mean Holt v. Hobbs?
http://www.scotusblog.com/case-files/cases/holt-v-hobbs/
Not exactly equivalent to Hobby Lobby, but he will probably win.
Geezer,
Yes there are dangers to taking oral contraceptives without consulting a doctor, but there are hundreds of drugs at Walgreens that pose a greater danger to patients:
1) Ibuprofen: Duodenal ulcers, acute kidney injury (which actually happens in 1-5 percent of people taking ibuprofens) which often leads to acute renal failure, and lactic acidosis.
2) Aspirin: if given to people younger than 18, can lead to Reye syndrome:
3) Tylenol: accounts for half of all cases of acute liver failures within the United States.
4) St. John’s Wort: Metabolized by liver enzymes which break down a lot of other drugs, so people with epilepsy take it and their anti-convulsant’s blood concentration is not where it should be, so they either suffer seizures or toxicities of the drugs.
I could go on and on with drugs found at GNC (creatinine and other supplements bodybuilders take) and Walgreens (especially the vitamins), but for reasons many people here know OCPs is held to a different standard than drugs that can be bought over the counter.
And if you are worried about the clot forming aspects of oral OCP’s, then take the estrogen out. Approve only progesterone only OCP’s which are a lot safer, but have to be taken every day at roughly the same time.
Also I generally don’t post links without reading them:-) In that same link, the articles mentioned in the link show:
1) Women who bought OCP’s online were just as aware of the side effects as women who got a prescription from their doctor.
2) Most of the studies show no difference in adverse outcomes between women who bought OCP’s from a drug store and women who got a prescription (the one study that showed a small difference in outcomes may not have controlled the other risk factors like high blood pressure and obesity in the two populations).
Doctor’s groups do couch their recommendations in conservative language, so the recommendations never sound as strong as it does. Also, it’s rare to see a professional organization post a recommendation that would go extensively against their own financial interests. OB-GYNS would lose a lot of business if over the counter OCP’s were allowed and they still think it’s the right thing to do.
Amazing prescience for a celibate priest, all those years ago:
Pope Paul VI, Humanae vitae, Section 17.
The Pope wound up foreseeing China’s forced abortion policy, and he wound up foreseeing the Obama Administration’s decisions that everyone should have contraception, and that even those people who objected ought to have to pay for it.
ATIAM wrote:
That’s exactly right . . . and the Court’s decision does not allow Hobby Lobby, or anyone else, to prohibit you from using artificial contraceptives. It simply states that they don’t have to pay for you using them.
@D “Obama Administration’s decisions that everyone should have contraception”
Maybe the Obama administration decided that birth control was better than controlling the population via famine, drought, disease, war, poverty, and lack of health insurance.
@D “and that even those people who objected ought to have to pay for it.”
Still having a little trouble with that cost comparison?
The Pope wound up foreseeing China’s forced abortion policy, and he wound up foreseeing the Obama Administration’s decisions that everyone should have contraception, and that even those people who objected ought to have to pay for it.
The biggest problem with this decision is that it allows those who have the least amount of maturity to impose their immaturity on a group of people who need smarter policy and smarter choices. I spend my life paying for stuff that I object to and do not want to pay for. Your Viagra, for instance. The medical bills of people who shoot themselves or their family members by accident with their legal guns. I pay to subsidize corporate farmers who don’t need any of my money. I pay for a military that is far too big and far too focused on policing the rest of the world.
This isn’t about paying for contraception — this is about providing the Dana’s of the world with ONE MORE OPPORTUNITY to trot their fundamental misogyny out into the world. We get that you aren’t especially sympathetic to women or their rights. Instead of working out your powerless white man issues on women who are doing nothing more than trying to manage their own lives, perhaps you could just check yourself and work out why it is that you would want women to live with fewer rights and entitlements to manage their own lives than you have.
@c “…why it is that you would want women to live with fewer rights and entitlements to manage their own lives than you have.”
Well put! That’s the core stripped bare.
And if your religion is telling you otherwise, then there is something wrong with your religion. Find a better one.
And if your political views are telling you otherwise, then there is something wrong with your political views. Find better ones.
Dana
Sorry to bust your bubble. Until you reprinted my prior message I didn’t realize there was a typo. It should have read:
The bottom line is that the Hobby Lobbys of the world can practice their religion, they CAN make me practice it as well and especially in the face of neutral governmental law/regulation to the contrary.
This is not about abortion, contraceptives but Freedom of Religion.
Whose freedom of religion?
This is a return to serfdom. What you can have is up to the whim of your lord…er, your employer.