Writing recently about the U.S. Supreme Court, I predicted that some time in June, “the five Republican appointees will likely breach precedent and create a whole new entity, the theocratic corporation.” Sadly, I have now been proven correct.
By the usual 5-4 margin, they decreed today – in defiance of long-established corporate law and judicial precedent – that corporations can impose religious beliefs on their workers. In their Hobby Lobby decision, the five Republican judges said that if a for-profit corporation is run by a religious family (such as Hobby Lobby, a big-box crafts chain), or some other closely-held faith-based coterie, it can henceforth deny female employes the full range of contraceptive coverage choices mandated by Obamacare.
Until today, the high court had never ruled that profit-seeking businesses can be viewed as religious entities – for good reason. According to traditional corporate law and a century of court rulings, firms that seek to make money and employ members of the general public are deemed to be secular. As 44 corporate and criminal law professors noted in a recent amicus brief, “the corporate entity is distinct in its legal interests and existence from those who contribute capital to it.” According to traditional corporate law and a century of rulings, corporate officers can’t discriminate against secular workers in the name of “religious freedom.”
One might have assumed that the five Republican appointees – conservatives who supposedly respect “judicial precedent” and oppose “judicial activism” – would respect American tradition. Nah.
They even managed to rewrite a federal religious freedom law. Congress enacted that law in 1993 to protect the rights of religious individuals; it wasn’t supposed to apply to corporations. But hey, as Mitt Romney famously said, “Corporations are people, my friend.” And so, in the Republican judges’ expansive reading, the ’93 law allows religious corporate owners to impose their “freedom” on the secular workforce.
Naturally, the GOP majority insists that this ruling is very narrow, that it applies only to religious family-held corporations, and that it disadvantages only those women workers who want the contraceptives (such as IUDs) which are deemed to be morally objectionable. In the legalese of Samuel Alito, who wrote for the majority, “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs.”
But this ruling is the foot in the door. As Ruth Bader Ginsburg wrote in her long-scathing dissent, the ruling “discounts the disadvantages that religion-based opt-outs impose on others, in particular, employees who do not share their employer’s religious beliefs.” The Republican majority “has ventured into a minefield,” because if Hobby Lobby and its co-plaintiff, Conestoga Wood Specialties, can be allowed to pick and choose its terms of compliance on religious grounds, what’s to stop other corporations from invoking God in order to evade certain laws?
Ginsburg wrote, “Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work.” Indeed, “Hobby Lobby and Conestga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs.” What about employers who are Jehovah’s Witnesses, who might object on religious grounds to covering their workers’ blood transfusions? Or Scientologist employers who object to antidepressants? As Ginsburg pointed out, the Republican majority is creating “havoc.”
This is what happens when you play the God card and twist the meaning of the term “religious freedom.” It’s supposed to be about shielding the religious individual from oppression; it’s not intended to be an instrument of oppression that allows someone at the top of a corporate pyramid to impose his religious beliefs on others. To the detriment of others.
But now we have a brand new American entity, the theocratic corporation – proof, yet again, that GOP’s judicial arm is still wreaking havoc. For that, we can thank the William Rehnquist court. Its 5-4 awarding of the presidency to George W. Bush continues to pay big conservative dividends.
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