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Friday, October 21, 2016

WASHINGTON — It’s not often that social and corporate conservatives come together, but the five right-of-center justices on the U.S. Supreme Court fashioned exactly this synthesis in their Hobby Lobby decision this week. In a religious freedom case related to birth control, the majority focused on the liberties of the company’s owners, not of those who work for them.

More than that, the justices continued to press their campaign to create an entirely new legal regime under which corporations enjoy rights never envisioned by our Founders or the generations who followed them.

On the same day and by the same 5-to-4 majority, the court ruled in Harris v. Quinn that home health care workers who choose not to belong to a union don’t have to pay the union’s cost of bargaining for a contract. The conservative majority again used the slogans of liberty, this time to undercut the ability of low-paid workers to organize themselves for higher wages and benefits.

In the Hobby Lobby case, the court ruled that because the owners of the $2 billion arts-and-crafts chain believed that certain contraceptives are abortifacients, they could not be required by the Affordable Care Act to include them in health plans supported by the law.

The decision, written by Justice Samuel Alito, is strange in a number of ways. It barely nodded at settling the factual question of whether or not birth control methods such as an IUD are abortion inducing. While Alito was at pains to say that the case applied only to objections to birth control and not, for example, to “immunizations,” his language (“may involve different arguments”) was vague.

And I loved Alito declaring that the best way to resolve the matter “would be for the government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Bring on single payer for contraception! It was a small victory for socialized medicine.

One bit of good news: After first providing a far-too-narrow exemption from the contraception mandate for explicitly religious nonprofits, President Obama came up with an accommodation that provides birth control coverage through alternative means. Alito said the administration’s approach “achieves all of the government’s aims while providing greater respect for religious liberty” and should have been applied to closely held corporations such as Hobby Lobby. Will he and the other conservatives remember these friendly remarks when they rule in future litigation against the Obama contraception compromise?

But above all, there is the very troubling desire of the court’s conservatives — made manifest in its Citizens United decision — to let individuals use the corporate form to escape “personal responsibility for the entity’s obligations,” as Justice Ruth Bader Ginsburg put it in her dissent, but then exercise the rights of individuals when doing so is convenient. They want corporations to have it both ways. “One might ask,” Ginsburg wrote, “why the separation should hold only when it serves the interest of those who control the corporation.”

Here, as in the health care workers case, the profound class bias of the court’s majority is there for all to see.

It’s unfortunate that the Obama administration’s initial, parsimonious exemption for religious groups helped ignite the firestorm that led to Hobby Lobby. It might consider this lesson as it moves, rightly, to issue an executive order to ban discrimination against LGBT people by government contractors. I’ve long believed that anti-gay behavior is both illiberal and, if I may, un-Christian.

It would be better still if the House passed the more comprehensive Employment Nondiscrimination Act that cleared the Senate last year on a bipartisan vote and includes a religious exemption. But before it issues its executive order, I hope the administration convenes a broad public consultation with religious groups to explore if there are ways to ban LGBT discrimination that they can live with.

Perhaps key religious groups will refuse to give ground. LGBT organizations may well see any accommodations as selling out fundamental principles. I get this. But the effort is worth making because we don’t need more distracting religious wars that give the right the sorts of openings the court used this week to push us backward.

As we celebrate the 50th anniversary of the Civil Rights Act, it ought to be easy to recognize how often religion has been a progressive force in our national life. Liberals should embrace religious liberty as their own cause. It should not be put to the service of reaction.

E.J. Dionne’s email address is [email protected]. Twitter: @EJDionne.

AFP Photo/Chip Somodevilla

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  • Dominick Vila

    Honestly, I doubt issues like this will make a difference in November. Most of us seem to have short memories, and many among us are more likely to remember the garbage articulated by a savvy opportunist than issues and facts that affect our freedom, values, and even our livelihood. Most Americans will not remember this issue a couple of weeks from now, let alone in November…and the GOP knows that!

    • TZToronto

      If Kim Kardashian ran for a seat in the House, she’d probably win (and do a better job than many already in the House). I’m being facetious, of course, but it’s relevant to your point. There are a lot of people who know nothing about anything the three branches of the federal government do–or even that there are three branches!

      • Dominick Vila

        The picture of a nun wearing a Hijab says it all…

        • Allan Richardson

          The headgear worn by many nuns goes back to the Middle Ages when ALL “ladies” (women of nobility) wore something similar. Those medieval head coverings may have a common ancestry with Muslim hijab going back to antiquity, but I have not personally researched the details.

          • Dominick Vila

            I know. I spent many years in Spain, Venezuela, and other countries, where such attrire is common, not only among religious people, but even in folklore, which often reflects ancient traditions and customs. My comment was meant to provocative, make people think, and elicit a reaction.

          • Allan Richardson

            I enjoyed the humor. I remember seeing a TV documentary, part of a Desmond Morris anthropology, featuring an island where (a) the people are almost 100 percent Roman Catholic, (b) they speak both English and their own language, derived from a medieval dialect of Arabic, written with Roman letters, (c) adult women do not leave the house without a black burqa-like robe and a headdress that looks like a 3 foot umbrella, (d) young girls do not leave the house at all except for emergencies, and (e) when a girl is old enough to be married, her father advertises the fact with a certain potted plant placed in the window sill of her upstairs bedroom, because there is no other “approved” way for the fathers of possible future husbands to meet her!

            They’re also well known for their falcon statues.

          • Dominick Vila

            I subscribed to a foreign TV media package several months ago, in part because the package includes two Spanish channels, one of which broadcasts a folklore show started by one of my brothers in law, and in part because I love English football. A couple of days ago I saw a show on TVE about the Sephardic Jews, who after centuries of being expelled from Spain by Queen Isabella, still speak an ancient form of Spanish. I wish our media devoted some time to featuring things like the one you described, and the one I just mentioned, instead of devoting so much time to Dancing with the Stars, childish shows, and being spokesmen for political parties.

    • plc97477

      I talked a life long repug into voting Dem. just by telling her what was in the ryan budget. I’m sure you can keep people remembering the issues if you tried.

  • TZToronto

    The point about corporate cherry-picking is something I’ve been wondering about ever since the Citizens United decision. If it benefits the corporation, it’s a person; if person-hood doesn’t benefit the corporation, it’s a corporation. Do the rest of us have that option? There’s a basic flaw in the Citizens United decision that can be nothing other than blatant favoritism toward the kings of industry. This has become an activist court, and it’s disgusting. Be prepared for even more terrible decisions in the coming years.

  • FT66

    This issue of birth control has touched nerves of all women (especially those who are single), whether one is social or corporate conservative. This issue is all about life & death plus nature. Every employer who cares about his/her employees should foresee that all employees are taken care of, so that they stay well and be productive at their workplace. Which employer likes to see a woman, if she not pregnant she is breastfeeding and vice versa? There is no person who has a good memory like a woman. They are going to remember this issue come Nov. and beyond.

    • idamag

      All generalities are lies. Your assertion “especially women who are single…” is a lie. Most of the women, I ever knew, who used birth control were married and limiting the size if their families. It is hard to break out of poverty or to save if you are popping out babies every nine months and fifteen minutes.

  • howa4x

    They are trying to establish the rights of a religious theocracy and the enshrinement of the permanent oligarchy in this country. They have brought together what the American Taliban is trying to accomplish. Repression of women and freedom for corporations. It is stunning to me that conservatives would ask government to expand a program, and force taxpayer to subsidize corporations in one decision. The right will stop cheering when the women and sympatric men break free of this round of repression and throw these religious zealots out of office. Let them establish Sharia law in their own states and not country wide. Let the red states succeed and form their own backward country.

  • ChristoD

    I am a religious fanatic and I object to EVERYTHING that is American. I therefore announce I am an anarchist and I also announce the end of America as we have known it. Welcome to the new America brought to you by the utterly clueless 2014 conservative dominated US Supreme Court where partisanship of the highest order now rules. Our we TRUE Americans outraged enough yet ?

  • pmbalele

    I really don’t know why can’t people believe in God and shut up. These religions divide people and are fakes. Hobby Lobby family is just another
    bunch of religious fanatics who want to show off and I don’t know to whom. God won’t listen to them and I hope they cheat on each other and divorce. I know I was a Catholic fanatic until the 1980s when we started hearing priests had been sexually abusing kids for years. But I knew that was happening when I was growing up. But I was such a prisoner of my Catholic faith that I would not dare to believe priests and bishops sexually abused kids. I also worked with nuns. One day one nun approached me and asked if I could find her a secret man to have sex with. I could not believe a nun wearing a veil could really have sex when I knew her vows were purity. Recently we read about a Catholic nun in Italy had given birth to a boy child. Like everybody else I was surprised. This nun was 1 mile from the Pope’s house. During the 2012 presidential campaigns Pat Robertson spent a week of retreat with his parishners praying that Romney win the election and that President Obama lose. Robertson could not stand another 4 years with a racial minority as President of US and the world. Robertson had been raised that racial minority were inferior to him as taught in his religion. Romney lost. President Obama was re-elected. So God did not listen to racist Robertson. So all these you call religious fanatics are fake. Hobby Lobby case is just a show off. My advice to every reader – please believe in the Creator, thank Him or Her for what you have and then shut up.

    • idamag

      I think Hobby Lobby is more concerned with throwing stumbling blocks in the path of ACA. My argument for keeping religion out of politics is similar to yours without the sex abuse. I live in an area where there is a majority religion. They don’t ask you which church you belong to, but which ward you belong to or who is your bishop. I live in a town of 40,000 and perhaps 100,000 in the greater area. Every holiday and Sundays there were stores open, except on the religions pioneer day holiday. All stores were closed. We didn’t have an Independence Day Parade, but we had a Pioneer Day Parade. Pioneer day was a paid holiday for many. When I was in grade school, all the children, who belonged to that religion, were bussed to a church meeting. I was the only one in my class that had to sit alone in the classroom like a pariah. The kids knew I did not belong to their religion and they told me my religion was of satan. Many things have changed over the years. It is much nicer now. Also a big government facility brought in a diversity of people. We have an Independence Day parade now. With the “Supreme” court, we have, maybe that is tenuous.

      • oldtack

        We can vent frustration and outrage at the decision of the Court and we can vilify the family that operates the hobby Lobby enterprise. But – that has no effect on anything.
        The only thing that will be effective and garner attention is Stop Shopping at Hobby Lobby. About the only thing I ever buy at Hobby Lobby is flowers for my late wife’s grave and glue when the need arises. I buy at Hobby Lobby because it is near my home. I do notice one thing when I am there – virtually all of the items in this place come from CHINA and about 95% of all customers are WOMEN. There is not one thing in Hobby Lobby that can’t be purchased at Michaels, Target or a dozen other places.
        If all are outraged at the attack on women in the guise of RELIGION then – DON’T SHOP THERE. Buy your ECC (expensive Chinese Crap) elsewhere.

        • idamag

          I have two Walmart stores closer then K-Mart, which is in the bedroom community of my city. I spend the time and gasoline to go to K-Mart. Somehow the religious jerks are trying to say that birth control is for single women to have sex. It is a Godsend to married women who do not want to pop out a baby every 9 months and 15 minutes.

          • oldtack

            I guess I didn’t expand on my post as I should have. My point was – This is an affront to all women – married or single. About 95% of Hobby Lobby Customers are women. If those women of this group that feel abased and degraded by this SCOTUS Decision would simply go down the block so to speak and buy their gee gaws and other made in China junk at Michaels or K-Mart or Target – what would happen to Hobby Lobby financially? Come on Ladies – let’s buy our trinkets elsewhere. Let Hobby Lobby sink in morass of misguided “Christian” sanctimony.

          • idamag

            I understood you. I was just saying how strong I feel about how businesses treat their employees and will feel better about the inconvenience than the alternative.

      • Allan Richardson

        “My friend … took too much … LDS in the sixties.”
        — Captain Kirk

  • idamag

    This is a strong argument for single-payer insurance/

    • 1standlastword

      More like a strong argument for the repeal of PPACA. I mentioned yesterday to Dominick, that Humana and no doubt other insurers are primed to increase policy rates between 10-15% starting in January! The healthcare for profit industry is about to reveal its policy of bait and switch and deliver a knife in Obama’ back. I own and operate a healthcare facility and the trend of high deductible plans that get recycled every term end gives the for profit healthcare industry another opportunity to go back to the well while people in need of services continue to get thrown into medical collections because they can’t afford the high deductible plans. It should be obvious–especially after Bush–that all industries desire a client government: healthcare is no different. The only solution is a single payer plan but that won’t happen anytime soon because the current industry is much like the financial industry…too BIG to fail and the government is too willing to preserve it. Especially since they i.e, the politicians get paid.

      • Allan Richardson

        Single payer will NEVER happen if we go back to the status quo ante, and while waiting for a “replacement” more people without insurance will die, or continue to be handicapped by illnesses or other conditions that COULD be cured or managed IF they had money, thus being less productive (imagine a poor amputee unable to afford a prosthetic leg which would allow enough mobility to take classes and hold down a decent job).

        Single payer is more likely to happen as an improvement over the new PPACA than to ever come up again if the interests who WANT a certain number of Americans to be uninsured get their way and repeal it. And even then, for the millions who COULD NOT GET health care access before, it’s a lot better than it was.

  • bobsog

    Finally, a decision that is putting us back on track…

    • herchato

      Yes, back on track to the days before civil rights and social security when business dictated. Those robber barons made this country and they didn’t need government regulations. A wonderful time for business and capitalism, not so much for the average American.

      • bobsog

        Agreed there is a need for regulation. But shoving government beliefs down our (including corporations) throats about contrcaption is going too far…

        • Faraday_Cat

          And corporations shoving thier beliefs (how the heck does a corporation have beliefs???) down the throats of their employees (who may hold different beliefs) is NOT going too far???

          • bobsog

            If the employees have a problem with it they can get their contraception on their own dime or choose to work some place else…

          • Allan Richardson

            In other words, if they have no bread, let them eat cake?

          • bobsog

            They can buy bread if they want bread. They can buy cake if they want cake. And they can buy any kind of contraception they would like as well – wether or not I agree with their choice.
            If I hire you to do a job, you get paid. You can do what you wish with that money. It is as simple as that. The Federal Government should have no part in the deal I make with you. Be it what I pay you or what benefits are included – or not…

  • Melinda Killie

    Nothing like hiding behind your faux religion to further your evil agenda, eh, Hobby Lobby hypocrites and republican/tea party bastards? Wrap yourself in the flag if you must, but remember, when you get incinerated in that flag for your faux, evil, stupid, bullshitting agenda, don’t come crying to the rest of us, for we will have NONE of you!

  • charles king

    Good People find out Where? have your Democracy gone. Critical Thinking is needed now days because their seem to be a lot of funny bunnies hanging around the voting booth. MONIES has cause a wide split among our leaders in governing the bussines of our country. Plutocracts, all over our States and they are a bunch of rich people(Commissioniers) using the Peoples ASSets and privatizing the People Assets with so call management companies. I do not know if they are in our Federal Government,they probaly are. What? the hell is going on. Unions use to keep the Corporations honest and made them pay their fair share Now the Corps are Not payin their fair share in wages and the workers better get a way to get some equality. President Obama has brought the Country back to a level Where? the Unions better come alive again because MONIES, Capitalistic Pigs, Plutocracts, Do-Nothingers RepS. Republicans and Democracts, Etcs. are PLAYING A dangerous game against the People of this great nation of Demoracy For, By, and Of the People. Thank You Are the magic words in my ook. I Love Ya All. M. C. E. KING

  • George

    Why would someone have to hire Gays if they dont have to follow ACA? Just say its agin my religion. I am guessing we will be hearing that a lot from now on

    • idamag

      And from there, deregulate laws that protect the handicapped and women. Yes, we better wake up.

  • JJB1310

    America, you have the right to remain silent while Father Alito diddles your kids.