Keep Quiet About Women. It's Divisive.

Fox News' Megyn Kelly should have kept it personal, with claims of her target as ignorant, misleading, or hewing to a double standard. The charges would have been invulnerable to refutation, as in "God exists" or "God does not exist."

Instead, Politico reports

Kelly’s comments came after Pelosi called the ruling in Burwell v. Hobby Lobby “a frightening one.”

“We should be afraid of this court, that five guys are determining which contraceptions are legal or not,” Pelosi said Thursday. “It’s not her boss’ business.”

Kelly went after Pelosi’s remarks, saying “Nancy Pelosi either doesn’t know what she’s talking about, or she’s intentionally misleading you,” and called the gendered attack an “attempt to stoke resentment.”

“First of all, the gender of the justices in the Hobby Lobby majority is totally irrelevant,” Kelly said, pointing out that the justices who ruled in the majority for Roe v. Wade were also men. “Does Ms. Pelosi think those justices were ill-equipped to fairly decide that case? Or is it only when a judge disagrees with Ms. Pelosi that his gender is an issue.”

She added, “If Speaker John Boehner made a similar comment about the female Supreme Court justices, Nancy Pelosi would be crying sexism — and that’s what she is guilty of here.”

Kelly called Pelosi’s comments a “gross misrepresentation” of the Hobby Lobby ruling.
“News flash: all birth control was legal before this decision remains legal today,” Kelly said. “The high court simply found that a religious freedom law which was co-sponsored by none other than — wait for it — Nancy Pelosi, sometimes protects corporations from being forced to violate their religious beliefs.”

But the Religious Freedom Restoration Act which the High Court believes protects some corporations from violating their religious beliefs does not pertain to religious beliefs. Rather, it pertains to the exercise of religion, in which Section 1(A) demands "Government shall not substantially burden a person’s exercise of religion."

It's ludicrous, further, to charge Nancy Pelosi with stoking resentment when it was Justice Alito himself who determined religion should trump law and science when he claimed

This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.

If the Justices are sincere (a very dubious proposition), the ruling- issued by five Roman Catholic jurists- is limited to abortion.  News flash: if it were issued by five Protestant evangelicals, it most likely would involve more than abortion (cartoon below from Steve Benson/ Creators Syndicate via Eric Schnurer), given that the Bible's preferences, were the five guys to care, extend far beyond abortion.  Instead, Alito seems to believe of all human activity, only abortion runs afoul of religious belief, a rather narrow view of Scripture, of religion, and of Christianity.  (Note there was no reference to same-sex marriage.)

The four methods of contraception which Hobby Lobby contends amount to abortion simply are not abortion according to federal law. It wasn't Nancy Pelosi but Justice Alito who recognized that, when in a footnote he wrote "The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, do not so classify them."

Besides violating the spirit of the Constitution, there may be no better way to stoke resentment than actively to promote establishment of one religion- whether Roman Catholicism, evangelical Christianity or, more generally, Christianity.  Public policy analyst Eric Schnurer, the day after the decision was handed down, explained

The court has always been hostile to the religious freedom claims of minority religions – ranging from Mormon polygamists to Native American peyote users to Jewish Army chaplains. So hobby stores owned by Seventh Day Adventists are probably in for a disappointment.

Alito is less convincing in beating back the question from dissenting Justice Ruth Bader Ginsburg about whether businesses can now insist that their religious scruples prohibit employing or serving certain people. The obvious first instance of such objection – which is already wending its way to through the courts – is religious-based objection to serving gay customers. While less socially acceptable today, the same logic applies to racial discrimination, much of which was, and, if it were sanctioned by the law, likely would again be allegedly religiously-based.

Alito tut-tuts such a possibility, but it’s hard to see why. The court seizes on Hobby Lobby’s status as a closely-held family businesses to carve out a new religious freedom for corporations based on their size. It insists that this right only applies to businesses of a certain size and legal type (“closely-held” as defined by the Internal Revenue Code), not large corporations. 

But this runs counter to the entire logic of the decision itself. The majority emphasizes that, in recognizing religious rights, there is no basis for discriminating between one form of legal organization instead of another – in this case, non-profits versus for-profits, or sole proprietorships instead of closely-held corporations. The majority opinion itself thus mandates that something as fundamental as religious freedom not be held to turn on even less consequential differences in legal form. Why, as the tax code defines “closely-held,” just five major stockholders? If Jacob’s 11 sons – excluding the one who turned out to be a liberal and went into the government – all take over their father’s sheep-herding business, shouldn’t they be eligible to assert their religious beliefs, too? This supposed distinction is unlikely to hold up....

Until yesterday, there was a bright line test concerning whether the government could override religious convictions. If you were engaged in private religious observance (at least, of the mainstream kind), the government couldn’t infringe on your beliefs; if you left the private realm and started doing things for commercial purposes, then you had to submit to government regulation, even if you had a religious belief that you shouldn’t have to. Don’t want a black houseguest for religious reasons? That’s your right. Don’t want to serve a black hotel guest for religious reasons? Too bad.

Now, the commerce/non-commercial distinction no longer matters (interesting in its own right for the court’s apparent obliviousness to any difference between religious and commercial activities). It only matters how many shareholders you have, at least for now, and whether your religious concerns, unlike vaccination and transfusion, mirror the justices’.

Keep an eye out for Hobby Lobby and Conestoga Woods in church some Sunday morning exercising their religion.  Perhaps Megyn Kelly can meet us there and bring with her Wakefern Food Corporation, which can lead the congregation in prayer; Verizon, to lead a hymn sing; and Barnabas Health, which might administer communion (cartoon below from Tom Tomorrow). Wal-Mart can join us to boast about the 15 cents it put in the offering plate because, as it realizes, everyone else will pick up the slack.

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