In the Dark Cave of the Court

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Next to the Supreme Court that gave us the indefensible Dred Scott decision, this court  may be the worst.  One irony–and God, are there ironies to choose from here — is that the lifetime sinecure provided to the court, saving them from the influences of the ‘real’ world in a failed attempt at objectivity is probably enabling their agonized legalize. Their historically misguided Citizens United decision was the shot over the bow. That ruling purported to advance the cause of ‘free speech’ by allowing corporations the right to fund partisan politics—something which had been limited by the McCain–Feingold Act, essentially saying, “Um, no Wal-Mart, you can’t carpetbomb a locality with ads for or against a particular candidate.” But the majority apparently live on a different planet, or in an especially dark and warm place, where corporations — legal entities that have no purpose outside of profit-making—should be allowed the same rights as an individual.

But, of course, corporations are not individuals. They’re not even just groups of individuals. They aren’t social clubs, or coffee klatches, nor are they rock bands or churches. Corporations have one purpose—to make money, everything else they might do is ancillary. They have no morality, no feelings, no loyalty to anything but the bottom line. Unlike humans, they have limited liability, a perpetual life, and the ability to span the globe with resources at their disposal in some cases equivalent to a nation-state. One may as well confer individual speech rights on an ATM. But in the view of the majority, corporate players are just another grouping of citizens, the core of their legal purpose of no more concern than the human rights of a black man, like Dred Scott, say, circa 1857. We’d excuse a five-year-old for the easy confusion. But that the top legal minds in our country should be thus baffled? That’s an intellectual embarrassment.

And the confusion at the core of Citizen’s United just got amplified with the recent Hobby Lobby decision. Again, the majority plows the same field, this time assigning morality to  its favored legal construct, and now adding improved super powers in addition to speech; we confer on corporations the ability to have faith!  But, of course, Hobby Lobby the legal entity doesn’t believe in God or Allah or anything. It has no capacity for belief. Now the owners of Hobby Lobby may have religious beliefs, but the legal entity called Hobby Lobby is designed to make money without regard to religious beliefs. And, in fact, it does exactly that. Investing in contraceptive firms and trading with China which, in fact, has some of the highest incidents of abortion—government funded and occasionally mandated– in the world today. Even if we entertain the dubious concept that Hobby Lobby as a corporate entity can enforce its owners beliefs on its employees—or somehow use the corporate entity Hobby Lobby to channel those beliefs, we’d find ourselves with some glaring inconsistencies when we discover how those ‘beliefs’ actually played out in the market place. If “sincerely held beliefs” are the test for refusing to abide by Federal law, do they need to be even remotely consistent?

Apparently, Hobby Lobby gets it both ways: I refuse to fund contraception through Obamacare, but I will invest in a company for profit that produces those contraceptive devices.  That’s what you get for conflating an owner’s ‘moral taste’ with a legal entity that they happen to helm. Does moral inconsistency disqualify ‘deeply held’? Who determines what’s deep and what’s not? More importantly, who determines what’s religious and what’s not? The owners of the company? Would they perhaps be influenced to shade this opinion based on their own legal requirement to make money?

Justice Ruth Bader Ginsburg in a sweeping dissent raises the same issues, noting, rather drolly that “the exercise of religion is characteristic of natural persons, not artificial legal entities.” As Stevens has noted as well, “Corporations have no consciences, no thoughts, no feelings, no beliefs, no desires.” Furthermore, the actual ‘harm’ to the religious believer is nebulous at best—the employer is not required to provide contraceptives, the insurance company is—along with a slew of other services. If the employer or employee doesn’t want to use contraceptives for religious reasons (or any reason, really), there’s no requirement that they do so. In fact, the coercion works the other way, forcing employees of a for profit corporation to essentially cow-tow to the religious beliefs of their owners. If an employer’s religious beliefs don’t mesh with the employees in this instance and they would want to take advantage of a universally available Federal program with direct health benefits, the owner’s religious ‘beliefs’ now trump all: the employee’s own religious beliefs, the employee’s right to healthcare and the force of Federal law.

Ginsburg rightly notes that the decision opens up a floodgate of questions and possible challenges, “Suppose an employer’s sincerely held religious beliefs is offended by health coverage of vaccines? Or paying the minimum wage?” What about Scientologists? Christian Scientists? Rastafarians and Wiccans? Do they get to weigh in? Where exactly does it end? If the Court must decide which religion is valid and which is not, favoring one over the other, won’t that in fact touch on—and violate– the Establishment Clause? Only if you live in a very dark place, would you assume that a “sincerely held religious belief” –whatever that might mean–should trump the government’s own interests in fairly representing the people.

But maybe that’s the whole point of this exercise, at least for the majority. Maybe it’s all about a particular flavor of religion that they would like to see ascendant.  After all, Alito tried to tailor the ruling so just folks agitated by contraceptives are defined as ‘religious.’ Not peyote eaters or Rastafarians to be sure, but those guys with the swell beanie caps, who get little shivers of horror that a woman should have access to contraceptives regardless of her marital status; now that’s morality!

Ginsburg concludes with a statement that may well turn prophetic: “The court, I fear, has ventured into a minefield”… perhaps it’s because for far too long this Court has made decisions as if living in a cave.

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