Burwell v. Hobby Lobby: the sequel. (Part 1 here.)
Well that didn’t take long:
The day after the Supreme Court’s Hobby Lobby ruling, a group of religious leaders sent a letter to President Barack Obama asking that he exempt them from a forthcoming executive order that would prohibit federal contractors from discriminating against LGBT people.
Full text of the letter is available here on MSNBC.
The network’s post is titled: “Will Hobby Lobby open the religious exemption floodgates?” Considering that it took less than one day to jump the fence from Alito’s definition of the Burwell decision as only relevant to restricting women’s rights to this attempt to use it as precedent to restrict LBGTQ rights, I would suspect the answer to MSNBC’s rhetorical (I hope) question is: Yes, yes, damn it all to hell, yes. Pick your metaphor: floodgates, Pandora’s box, the Protection Grid from Ghostbusters. The damn thing is open for business.
The New York Times opinion page is less disingenuously rhetorical with its title choices (see: “Hobby Lobby is Only the Beginning“). Paul Horwitz writes:
[M]any people view the Hobby Lobby case as concerning not just reproductive rights but also, indirectly, rights for gays and lesbians. Advocates for same-sex marriage have long insisted that their own marriages need not threaten anyone else’s, but citizens with religious objections to same-sex marriage wonder whether that is entirely true: Will a small-business owner be sued, for instance, for declining to provide services to a same-sex couple? Conversely, and understandably, gay and lesbian couples wonder why they do not deserve the same protections from discrimination granted to racial and other minorities. For both sides, Hobby Lobby was merely a prelude to this dawning conflict.
Moving beyond the implications of the decision for any specific marginalized group, Slate provides a brief history of First Amendment case law and the Religious Freedom Restoration Act (RFRA) to demonstrate how, with Burwell v. Hoby Lobby:
The court has eviscerated decades of case law and, having done that, invites a new generation of challenges to federal laws, including those designed to protect civil rights. . . . Justice Samuel Alito claims that RFRA marks “a complete separation from First Amendment case law.” . . . By reading RFRA as creating a total break from decades of First Amendment jurisprudence, the court has freed itself from any precedent that would otherwise have blocked the outcome in Hobby Lobby. . . . Sherbert andYoder—the cases that RFRA was designed to “restore”—are irrelevant. And by implication, so are more than a dozen other precedents that shaped the body of the law governing religious liberty in this country before 1990—the very legal doctrines that Congress intended to re-establish as the law of the land when it passed and later amended RFRA.
Hobby Lobby is unprecedented because it corporatizes religious liberty. It extends to for-profit businesses the rights and privileges that have long been associated only with churches and religious nonprofits. But that change is the result of a more pervasive and deeper upending of the law of religious liberty in America. Ignoring congressional intent, the court reads RFRA as having shed its First Amendment skin.
The more I think on it, the more frustrated I am by the language Alito put into his majority opinion for Burwell v. Hobby Lobby, trying to claim that the decision shouldn’t be read as precedent for much of anything. Obviously, I’m just a reasonably-well-educated citizen — no law degrees, no special legal expertise — so I could be totally wrong about this. But my understanding is that one of the Supreme Court’s main functions is to be creating precedent for the law of the land. So when Alito tries to pretend otherwise with Burwell v. Hobby Lobby, is he being naive or just plain disingenuous?
(And I Can’t Even insofar as the one commentator I saw suggesting that if Burwell v. Hobby Lobby goes on to be used as precedent for further discrimination, the fault will lie with the strong wording of Ginsberg’s dissent rather than the original decision. Forgive me a reductionist moment of complaint: of course it’s the woman’s fault! Grrr.)
Now, as far as I’m concerned, there’s a particular danger in leapfrogging too quickly over the immediate implications of Burwell v. Hobby Lobby to worry about the “slippery slope” of how the decision can be used to justify these further pieces of injustice and prejudice.
Even if it were possible to hold the “Alito fence” around the decision’s relevance so that it impacted nothing besides women’s reproductive freedom…on that measure alone, I consider the decision to be morally reprehensible and worthy of outrage.*
These additional implications of using the decision as legal precedent for a new 21st century theocracy? That’s just the shit-cream frosting on this entire Cake of Suck.
* Which is why I’ll be diving back into that side of things tomorrow. But that will be a loooong writing process, and I can’t find all my words for it tonight.
Image credit: http://travisjarrodsmith.tumblr.com/post/74781355822/cbr6-review-38-the-slippery-slope-by-lemony-snicket