Religious Discrimination, Strategically Permitted

Jon Perr of Perrspectives remarks

Already, the Supreme Court has ordered lower courts to reconsider their previous decisions against companies opposing the entire Obamacare contraception mandate while refusing to hear challenges to several victorious firms owned by Catholics objecting to all methods of birth control. In its subsequent provisional ruling in favor of Christian Wheaton College, Justice Sonya Sotomayor warned that the Roberts Court had already revised its two-day-old Hobby Lobby decision. Meanwhile, a group of prominent faith leaders sent a letter to President Obama demanding a religious exemption to his pending executive order forbidding federal contractors from discriminating against current and potential LGBT employees. The wave of lawsuits to come will soon expose the fiction behind Justice Alito's promise...

As Jeffrey Toobin rightly noted, the Roberts Court has previously touted its "narrow" rulings only to later use them as a cudgel to smash past precedent. For example, in his supposedly narrow opinion in the 2009 Northwest Austin Municipal Utility District Number One v. Holdervoting rights case, Chief Justice John Roberts invented the doctrine of "equal sovereignty" of the states. Then in his 2013 Shelby County opinion, Roberts proceeded to his equal sovereignty brainchild to completely gut Section 5 of the 1965 Voting Rights Act. Given the opportunity, there is little question that the court's conservatives will expand their Hobby Lobby ruling to "provide a shield for employers who might cloak illegal discrimination as a religious practice."

Toobin had offered his opinion immediately following the ruling in Burwell v. Hobby Lobby Stores Inc., et al. Reporting on the Wheaton College action a few days earlier, The New York Time's Adam Liptak wrote

Justice Sotomayor said the majority, which acted on an emergency application, had not only introduced pointless complexity into an already byzantine set of regulations but had also revised its Hobby Lobby decision.

That decision, Justice Sotomayor said, endorsed an arrangement allowing nonprofit groups to sign a form that would transfer the delivery of free contraception under the Affordable Care Act to others. But Thursday’s order rejected the mandatory use of the forms for Wheaton College in Illinois...

On Thursday, the court’s majority said all Wheaton had to do was notify the government in writing “that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraception services.”

The difference between a form sent to insurers and plan administrators on the one hand and a letter sent to the government on the other mattered, the college told the justices, “because it believes, as a religious matter, that signing the form would be impermissibly facilitating abortions and is therefore forbidden.”

Now signing a form is facilitating abortion  It must be frustrating for Justice Sotomayor, who seems to be a straight shooter, to be working among men who are brazenly deceitful.  But she knew it was only a matter of time- in this case, three days- before she would have to note "Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

Were the male Repub Justices even a bit forthright, one of their number would assert that the (unsigned) order in Wheaton College v. Sylvia Burwell, Secretary of Health and Human Services, did not defy the decision (or at least not most of it) in Hobby Lobby. The statement could be made by Justice Alito, who had written the majority opinion in the latter case.

Carefully parsing his words, Alito had pointed out "the decision concerns only the contraceptive mandate," which is literally true given that the plaintiffs had objected specifically and solely to paying for four forms of birth control they claim constitute abortion. That need not, of course, prove a bar to applying the ruling to other instances, even if (as Alito put it) it would not "necessarily" prove the case.

"Nor does" the ruling, Alito maintained, "provide a shield for employers who might cloak illegal discrimination as a religious practice."  Rather, it provides a shield for employers who might cloak what others would see- misunderstand, in his view- as illegal discrimination.  If the Supreme Court believes it is not illegal discrimination, it is not illegal discrimination.  Discrimination, to be sure; illegal discrimination, apparently not. And there is a lot of discrimination employers may practice which this Court would hold is not illegal.

Once upon a time, conservatives would claim they strove for religious freedom for all, for the opportunity for each person to practice the religion he or she chooses.  Such claims are less common now and should be derided if made at all.  The Fab Five have made that clear:  not all mandates, such as for vaccinations and blood transfusions, which violate a religious conscience are likely to be struck down. Not all religions are created equal, nor are all to be given equal deference, when one of the objectives is not to establish religion but to establish a particular religion.

We do not know the exact contours yet: more bad decisions await before we can determine whether it is Roman Catholicism, evangelical Christianity, or perhaps even a hybrid religious faith the Court recognizes in its effort to tear down the American mosaic. But Justice Alito made it clear a couple of weeks ago: this land is your land (below, Woody Guthrie, with lyrics offensive to The Fab Five), as long as you believe a certain way.

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