Monday, June 30, 2014

The "Hobby Lobby" Roberts Court travesty

The Supreme Court, the Radical Republican Roberts Court, delivered two blows to labor on Monday in Burwell v. Hobby Lobby Stores, Inc. and Harris v. Quinn, the first directed in particular toward female employees. Harris put some limited restrictions on state laws requiring workers in union-represented groups of workers to pay union dues. Both are bad and could serve as precedents to worse, which the Roberts Court likely intends in both cases.

Hobby Lobby is the more dramatic and consequential one, allowing the for-profit corporations Hobby Lobby, Mardel (owned by the Green family that owns Hobby Lobby) and Conestoga Wood Specialties Corporation to be exempted from the federal requirement to provide health insurance to its employees that includes birth control, more particularly birth control their owners claim to find religiously objectionable.

A number of people far more competent than I to speak to the legal issues are writing about it, and I cite some below.

But let's start with one of the people cheering the Hobby Lobby decision: Pastor Brandon Cox, Why Do Christians See the Hobby Lobby Case as a Big Win? Christian Post 06/30/2014 and is part of the evangelical empire of one-time alleged moderate Rick Warren. The Christian Post tries to provide a clean-shaven version of fundamentalist Christianity. So the articles and columns contain a lot of mealy-mouthing and hedging, which makes for boring and often confusing reading. Cox gives an it's-all-good take on Hobby Lobby:

I believe the Court's decision in the Hobby Lobby case is a big win for religious freedom because it respects the foundational principle underlying the First Amendment itself. The church should not step into the role of the government, but citizens by all means may serve as the government's informal conscience and speak their convictions in the public square. Our constitution upholds the freedom of all people to live by the government of their own conscience, regardless of what their religion is, so long as their conscience does not directly conflict with the stated purposes of government.

... Religious liberty matters, for all people, of all faiths, Christian and otherwise.

You have the freedom to work where you want, shop where you want, and use legal prescription medications as your physician prescribes them. And the Green family may abstain from paying for insurance coverage for contraceptive methods they deem unethical.
But the act often slips with fundis, as it does with Cox, who writes, "you should know that I'm a Baptist who identifies strongly with ancient Anabaptists on issues of religious liberty."

The Anabaptists were a product of the 16th century Protestant Reformation, so I'm not sure that qualifies as ancient. Their most famous splash was the hardcore theocracy they ran in the German city of Münster from February 1534 to June 1535. Their leader Jan van Leiden (1509-1536) had 16 wives. Here is a painting of him beheading one of them, Elisabeth Wantscherer, because she criticized him.

So Anabaptist separation of church and state: none at all.

Anabaptist religious liberty: the dames do what they're told.

Yep, that's a Hobby Lobby supporter!

Justice Ruth Bader Ginsburg's dissent starting on p. 60 of the decision linked above emphasizes that the decision is based not on the First Amendment, but on the Religious Freedom Restoration Act (RFRA) of 1993. RFRA actually had wide backing from liberals including Ted Kennedy. Its purpose was meant to give a higher priority to protecting the individual religious freedom of employees, and not to give corporations the right to make medical decisions for their employees.

Ginsburg: "Given the Act's moderate purpose, it is hardly surprising that RFRA’s enactment in 1993 provoked little controversy."

But, as Charlie Pierce notes in The Supreme Court Has A Favorite Religion, And That's A Big Problem Esquire Politics Blog 06/30/2014, the RFRA "has become a Trojan Horse, sliding the country toward a de facto kind of established religion, which today's ruling in Burwell v. Hobby Lobby makes eminently clear."

Ginsburg in her dissent explains how the Court's ruling in Hobby Lobby basically takes the plain meaning and legislative history of that act and reads it in an almost opposite way.

Since the ruling is based on a law, Congress in theory could change it by amending it to exclude that reading. The Republicans wouldn't let it go through in the current Congress. But the Democrats could make a stink by demanding a change and force the Republicans to take and stand over and over in public against against the "sluts and prostitutes" who want this - Rush Limbaugh's description of women like Sandra Fluke who wanted birth control coverage. It would be a good test to see how many Reps would embrace sacred Bipartisanship to overturn Alito's decision. (My best guess: none.)

Also, since the Reps are clearly setting up for an impeachment of Obama, this would be a great time for Democrats to push for hearings on the judicial ethics of Antonin Scalia and Clarence Thomas.

Another good pushback, one the Dems probably won't even consider, would be to propose a law defining just how a corporation and its top executives and shareholders would be required to demonstrate their sincere religious beliefs. Like for conscientious objectors to the draft. I would say that if the CEO and all his/her direct reports and the top five stockholders of the corporation should be required to demonstrate regular attendance at worship services at a church that clearly opposes birth control. And that they demonstrate they are consistent in adhering to their church's teachings. Let the Republicans object that the religious freedom of CEOs has to be protected from such prying while the consciences of their employees - especially female ones - don't matter.

One thing the Dems could do as pushback would be to advocate a law that shareholders would require the senior officers and top stockholders of a for-profit corporation claiming the Hobby Lobby exemption to demonstrate their sincere religious beliefs in at least as rigorous a way as required for conscientious objectors to military service. That would require the Reps to defend the religious rights of corporations against the religious rights of employees.

Like the Roberts Court's decision allowing the radical ruling for the vulture funds against Argentina made by the Nixon-appointed zombie Judge Thomas Griesa stand, Hobby Lobby is a radical decision. Rightwing judicial activism on steroids.

It's radicalism is in giving a for-profit corporation the ability to claim religious beliefs. Apart from being anti-woman and anti-labor and a terrible misinterpretation of religious freedom, there's this in the "Be careful what you pray for/You just might get it" category. That's a quote from this Paul Kelly song:

Bloomberg Businessweek did a background piece on the Hobby Lobby case and the company in April, Hobby Lobby Case: Does God Hate Obamacare? by Susan Berfield 04/03/2014:

No big public company has come out in support of Hobby Lobby. Nor has the U.S. Chamber of Commerce or any other business group that doesn’t have a religious affiliation. That’s most likely because the case aims to "pierce the corporate veil," or look behind the corporation's legal identity and base a ruling on the interests of its owners. Companies have rights: to own property, enter into contracts, sue in court. But a company is also separate from its owners. If there are legal claims, they fall on the company, not its investors. A ruling that blurs the distinction between the two could erode the legal protection owners and investors have.
As Ginsburg puts it at the end of her dissent, "The Court, I fear, has ventured into a minefield."

Jed Lewinson reminds us in Now it's clear exactly what Bobby Jindal means when he says 'religious liberty' Daily Kos 06/30/2014 how the Christian Right Republicans are trying to make "religious libery" not only a codeword but a legal stalking horse for their theocratic, reactionary agenda across the board.

Dahli Lithwick, For a hands-off court, this one sure is hands-on. Slate 06/30/2014"Yes, corporations win big today. And women lose, huge, again."

The Balkinization blog has been following the Hobby Lobby case for a while, and has many posts on the subject. Including this 06/30/2014 one by Marty Lederman, Hobby Lobby Part XVII -- Upshot of the decision: A possible win-win solution (and now all eyes turn to Notre Dame).

The SCOTUSblog 06/30/2014 provides a set of links to posts on the decision.

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