First Floor at the Statute of John Marshall, quotation from Marbury v. Madison (written by Marshall) engraved into the wall. United States Supreme Court Building. (Photo credit: Wikipedia)
The US Supreme Court’s decision in Burwell vs. Hobby Lobby has opened the floodgates for supposedly secular companies to claim a “religious exemption” from rights that employees and potential employees would otherwise enjoy. Suddenly, a new reality is emerging that when a company owner’s religious beliefs conflict with that of their employees, the company owner prevails. That’s bad news for you if you don’t own a company.
In case you’ve been living under a rock for the entirety of July, here’s an update. In the above court case, the Supreme Court agreed with Hobby Lobby’s assertion that they should be exempt from the Affordable Care Act‘s requirement that companies providing insurance coverage to its employees include coverage for certain types of contraception. Hobby Lobby, as a family-owned company, was claiming a religious exemption despite not being classified as a religious organization.
Justice Ruth Bader Ginsburg was at times quite blunt in her dissent on the 5-4 majority ruling (in which all five voting in the majority were men and three of the four dissenting justices were women). “In a decision of startling breadth,” she wrote, “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.”
Think the floodgates haven’t opened? Think again.
A letter from fourteen people, including the leadership of twelve religious charities, requested a religious exemption from an executive order that would have required all federal contractors to avoid discriminating against lesbian, gay, bisexual and transgendered people in their hiring practices. I find the letter noteworthy in the coded language they use when trying to defend not hiring LGBT people. George Fox University recently obtained a religious exemption from the U.S. Department of Education to deny on-campus housing to a transgendered student who had physically, mentally and legally completed the transition from female to male. While GFU is a Quaker educational institution, many Quakers have spoken out vociferously against GFU’s decision claiming that the act of denying on-campus housing violates Quaker values.
I found it interesting that Catholic Charities USA‘s CEO was one of the fourteen charity leaders that signed on to the letter, which was issued one day after the SCOTUS ruling. I worked at Catholic Charities of Chicago through much of the 1990’s. For decades, Catholic Charities of Chicago has secured federal and state grants to perform a variety of human services. When I worked for them, they were very clear that they did not discriminate against non-Catholics or non-Christians, and that this is what enabled them to obtain such grants in the first place. I can certify as a non-Catholic that I didn’t feel discriminated against and that the organization clearly embraced diversity. One of my co-workers was gay and it was a pretty open secret. He never talked about his experience as a gay person at the agency so I don’t know what it was like for him, but it seemed to me that he was highly regarded.
But Catholic Charities of Chicago hadn’t always been that way. Apparently, until the early 1980’s, Catholic Charities employees who became pregnant were required to quit their jobs. The story was that Cardinal Joseph Bernardin–a broad-minded, arguably liberal cardinal who was well-liked and deeply respected by all–eliminated that policy. And while they didn’t encourage contraception, their AIDS liaison published a pamphlet about avoiding AIDS that said “And as for condoms–well, the Catholic Church doesn’t encourage the use of contraception.” Wink, wink, nudge, nudge.
Some aspects of this ruling really stand out for me.
1) This is not about the right to practice one’s own religion as one pleases, but a decision about who’s religious beliefs should get priority when a company owner’s religious beliefs conflict with that of their employees.
2) This conflict between Hobby Lobby and its employees would not have surfaced had there been a public option in the Affordable Care Act.
3) Hobby Lobby is not a religious organization, yet it can claim a religious exemption.
4) While the First Amendment speaks against government establishing or favoring one religion over the other, there are few barriers that would, in effect, keep private company owners from de facto establishing a religion on its employees..
5) There seems to be relatively little in the way of a litmus test to determine whether a belief is in fact a religious belief or not. Christians differ on whether contraception is forbidden by the Bible or not. Many Quakers consider GFU’s decision to be antithetical to core Quaker values.
5) Given that there is a trend and even a push towards more privatization of the public commons (i.e. schools, utilities, public spaces) it may not matter whether government establishes an official religion or not if a private and powerful entity is pulling the strings.
In the meantime, Justice Ginsburg’s dissent has been put into song. (Though I don’t believe the phrase “slut-shaming geezers” is hers. She was blunt, but not that blunt.)