Saturday, July 05, 2014

165.4 - Outrage of the Week: Hobby Lobby decision

Outrage of the Week: Hobby Lobby decision

Now for our other regular weekly feature, the Outrage of the Week.

You know about the Hobby Lobby decision. I know you do, you can't not know unless you are consciously avoiding all news in which case you wouldn't be watching this.

But just to summarize: On June 30, the Supreme Court ruled 5-4 that "closely-held" corporations can refuse to provide coverage for contraceptives and contraceptive care in the health insurance required by the Affordable Health Care Act, aka Obamacare, based on a claim of a "religious objection."

You've heard about that. Maybe you've even heard about Ruth Bader Ginsburg's blistering dissent, in which she called the ruling "a decision of startling breadth" that can "introduce" "havoc."

Ruth Bader Ginsburg
She blew away the idea that providing contraceptive coverage as part of health insurance is a "substantial burden" on the religious views of corporate owners, noting that "[t]he requirement carries no command that [corporations] purchase or provide the contraceptives they find objectionable" and that a woman's decision to claim birth control benefits in consultation with her doctor is not equivalent to a moral action on the part of her employer.

You may also have heard it observed that the majority in the case were all men and all three women on the court were among the dissenters.

But there are some bits you may not have heard about the case and I wanted to point out some of those.

One is that the reactionary majority went out of its way to say this only applied to "closely-held" companies and so there was the usual crowd of pundits and analysts going on about how it's really no big deal, it only affects a few people, what's the big deal, nothing to see here, move along, and so on.

But the term "closely-held" is defined by the IRS as no more than five people holding at least half of the stock. As Adam Winkler of the UCLA School of Law noted, that description covers the vast majority of corporations in America. A 2000 study estimated that more than 90 percent of American businesses are closely held. A 2009 study by Columbia University found that closely held corporations employ about 52 percent of the US labor force. This is no "limited impact" ruling.

What's more, this was the first time the Supreme Court has ruled that profit-seeking businesses can hold religious views under federal law. Which becomes even more surprising when you consider what hypocrites it makes of the reactionary five, who perpetually crow about their devotion to original intent and precedent. (Or maybe it's not surprising after all.)

For example, in 1968, Maurice Bessinger, the owner of a chain of restaurants, wanted a religious exemption from civil rights laws because he believed that segregation was justified by the Bible. The Supreme Court said no, his belief did not exempt him from the law.

For another, the very law the majority cited in this case, the Religious Freedom Restoration Act, was prompted in part because of a Supreme Court decision.

In 1993 the court refused to allow a religious exemption for members of the Native American Church over peyote, a hallucinogenic drug which was traditionally used by the natives during their religious services. The court said that “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." That majority opinion was written by Antonin Scalia, one of the foul five in the Hobby Lobby case.

In fact, the entire Hobby Lobby decision is let's just call it disingenuous.

For example, the foul five insisted that the decision is limited to contraceptives under the health care law and "should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer's religious beliefs."

Which is nonsense. Because how do you decide? Once you decide that profit-seeking corporations can have religious beliefs, where do you draw a new line? How can you draw a new line without favoring one religion over another? How can you say you can have religious convictions about contraceptives but not anything else?

If now a Christian Scientist employer claimed they wanted to be exempt from covering blood transfusions, how do you say no?

Go wider, but still within the healthcare mandate: If an employer wants to be able to refuse to provide any coverage for a same-sex spouse of an employee because of their religious objections to such marriages, how do you say no?

Wider still: If a Muslim business owner claimed a religious objection to hiring women who would not wear the burqa, how can the Court now say no?

The claim of a "limited" ruling affecting "only contraceptives" is crap and I say the foul five know it. This decision is likely to open the floodgates to a host of religious wackos of one sort or another who want to have their personal predilections enshrined as national policy. This is not the end. It's the beginning. And it is an outrage.

Sources cited in links:

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