Protest sign outside the Supreme Court
Protest sign outside the Supreme Court

SCOTUS will insist on opening another Pandora's box

| The US Supreme Court (SCOTUS) is the modern-day equivalent of Pandora. They keep opening legal boxes visiting awful consequences into our lives.

Monday, the last day of the current term, the Court rendered its decision in the Hobby Lobby and Conestoga Wood cases. (They were separate cases but the Court issued a single decision covering both.) By a 5-4 vote, the Court found that "closely-held" for-profit corporations have religious rights that can trump a generally applicable law, in this case the provision of the Affordable Care Act (Obamacare) that requires insurance plans to cover women's contraceptives approved by the FDA.

Justices votes in Hobby Lobby decision
The five most conservative Justices decided that corporations controlled by religious families can refuse to pay for contraceptive coverage in employees' insurance plans 

In Citizens United last year, the court declared that money is speech and corporations can speak as much as they want.

In the Hobby Lobby decision, they went further and declared that corporations — at least those that are "closely-held" — also have religious beliefs that are protected by the First Amendment and the Religious Freedom and Restoration Act of 1993.

A note about those "closely-held" corporations. The common connotation is that these are small, family corporations, such as your doctor's medical corporation or businesses featured in Vista Print ads. Actually, some of our biggest businesses — Dell, Toys "R" Us, Heinz, Dole, Petco, Stater Bros, Koch Industries — are closely-held corporations. Closely-held corporations in fact comprise 90% of all US businesses and employ 52% of the workforce. In 2013 the 224 largest closely-held companies had combined revenue of $1.6 trillion Washington Post, 30 June).

Justice Ginsburg
Justice Ginsburg

The dissenting opinion was authored by Justice Ginsburg and it was a scorcher. Physically, Ginsburg looks rather frail, but she packs a powerful legal punch. She assailed the decision as being of "startling breadth" and warned that it was going to trigger additional lawsuits, "untoward effects."

"Until this litigation, no decision of this Court recognized a for-profit corporation's qualification for a religious exception from a generally applicable law, whether under the Free Exercise Clause or RFRA," wrote Ginsburg.  "The exercise of religion is characteristic of natural persons, not artificial legal entitles." Take that, all you conservatives who claim to respect precedent!

She mocked the majority's claim that the government could solve the whole issue by simply paying for contraceptives, leaving the employers out of it: "And where is the stopping point to the 'let the government pay' alternative? Suppose an employer's sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, ... or according women equal pay for substantially similar work...?"

She pointed out that the whole reason for incorporating a business in the first place is to separate the owner from the entity and its obligations. "One might ask why the separation should hold only when it serves the interest of those who control the corporation," she wrote.

The majority decision was based not on the Constitution but on a statute, the Religious Freedom and Restoration Act. Ginsburg went to great lengths to show that the RFRA wasn't enacted for the purposes the majority used it, and even if it had been, the relationship between the owners' religious beliefs and contraceptive coverage in the healthcare plans is "too attenuated to rank as substantial." The companies are not required to purchase or provide contraceptives; they are required to "direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans.... Importantly, the decisions whether to claim benefits under the plans are not made by Hobby Lobby or Conestoga, but by the covered employees and dependents." If Hobby Lobby and Conestoga are opposed to contraception, they don't have to use it!

The Hobby Lobby and Conestoga decision is part of a pattern with the Roberts court: a bull-in-the-china-shop approach that ignores precedent and common sense, heedless of the possible implications. Indeed the majority opinion and Kennedy's concurring opinion took great pains to claim that the decision "does not have the breadth and sweep ascribed to it by the respectful and powerful dissent." Yeah, right!

Protest sign

Once again, five conservative men on the bench overruled the objections of the three women on the court. Quelle surprise.

The decision

Supreme Court of the United States Hobby Lobby and Conestoga Wood decisions.

Last updated on Apr 13, 2018

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