“The Profound Depth Of Religious And Male Norms”: The Supreme Court Ruled In Favor Of Patriarchy, Not Democracy
On Monday morning, the Supreme Court delivered a severe blow to women in the United States when it ruled that “closely-held” corporations, such as Hobby Lobby, can refuse to provide insurance coverage for birth control based on owners’ religious beliefs. Liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor partially joined Justice Ruth Bader Ginsberg in a 35-page dissent against the majority decision of the five conservative, male justices.
That the Court ruled this way should surprise no one. What should surprise, however, is the continued expectation that we overlook patriarchal religious fundamentalism, its collusion with constitutional “originalism” and its discriminatory expression in our political system.
Most analyses of this case will parse the law and, in doing so, make no challenges to two fundamental assumptions: 1) that the law and the Court are both “neutral” to begin with and 2) that we should not question the closely held religious beliefs of judges and politicians, even when those beliefs discriminate openly against women. This is a judgment. And judgments come from norms. And norms are based on people’s preferences. The Court is made up of people who have beliefs, implicitly or explicitly expressed.
In the practice of many religions, girls’ and women’s relationship to the divine are mediated, in strictly binary terms, by men: their speech, their ways of being and their judgments. Women’s behavior, especially sexual, is policed in ways that consolidate male power. It is impossible to be, in this particular case, a conservative Christian, without accepting and perpetuating the subordination of women to male rule. It is also blatant in “official” Catholicism, Mormonism, Evangelical Protestantism, Orthodox Judaism and Islam.
The fundamental psychology of these ideas, of religious male governance, does not exist in a silo, isolated from family structures, public life or political organization. It certainly does not exist separately from our Supreme Court. Antonin Scalia, for example, makes no bones about his conscientious commitment to conservative Catholic ideals in his personal life and the seriousness of their impact on his work as a judge. There are many Catholics who reject these views, but he is not among them. These beliefs include those having to do with non-procreational sex, women’s roles, reproduction, sexuality, birth control and abortion. The fact that Scalia may be brilliant, and may have convinced himself that his opinions are a matter of reason and not faith, is irrelevant.
What is not irrelevant is that we are supposed to hold in abeyance any substantive concerns about the role that these beliefs, and their expression in our law, play in the distribution of justice and rights. They are centrally and critically important to women’s freedom, and we ignore this fact at our continued peril.
Ninety-nine percent of sexually active women will use birth control at some point in their lives. The Court’s decision displays the profound depth of patriarchal norms that deny women autonomy and the right to control our own reproduction—norms that privilege people’s “religious consciences” over women’s choices about our own bodies, the welfare of our families, our financial security and our equal right to freedom from the imposition of our employers’ religious beliefs. What this court just did was, once again, make women’s bodies, needs and experiences “exceptions” to normatively male ones. This religious qualifier was narrowly construed to address just this belief and not others, such as prohibitions on vaccines or transfusions. It is not a coincidence that all three female members of the Court and only one man of six dissented from this opinion.
While there are hundreds of bills and laws regulating women’s rights to control their own reproduction, I’m not aware, after much looking, of any that similarly constrain men or tax them unduly for their decisions. As a matter of fact, we live in a country where more than half of our states give rapists the right to sue for custody of children born of their raping and forcible insemination of women. Insurance coverage continues to include medical services and products that help men control their reproduction and enhance their sexual lives.
As Ginsburg outlined in her dissent, the costs that this decision will accrue to women are substantive. The argument that employers shouldn’t pay for things they don’t believe in is vacuous. Insurance benefits are part of compensation. Even if you reject that notion, it is clear that we all pay for things we don’t like or believe in through our taxes and, for employers, through insurance. That’s how insurance and taxes work—except when it comes to women and their bodies. That’s sexism.
That we live with patriarchy is evident. That this dominance is and always has been the opposite of democracy is not to most people. SCOTUS’ decision is shameful for its segregation of women’s health issues and its denial that what should be valued as “closely held” in our society is a woman’s right to make her own reproductive decisions. American women’s equality continues to be undermined by the privileging of religion in public discourse.
By: Soraya Chemaly, Time, June 30, 2014
“The Majority Has Ventured Into A Minefield”: Here Are The Highlights Of Justice Ginsburg’s Fiery Hobby Lobby Dissent
On Monday morning, the Supreme Court finally released its much-anticipated decision on the Hobby Lobby case, a decision that lived up to expectations by being split along ideological lines (the court’s five conservatives overruling its four liberals) and severely weakening Obamacare’s birth control mandate.
Also living up to expectations? Liberal Justice Ruth Bader Ginsburg’s blistering dissent, which excoriated the court’s majority for its ruling, describing it as a “radical” decision “of startling breadth” that would have chaotic and major unintended consequences. You can read her dissent in full here (it starts at page 60) but we’ve also compiled some of its best, key parts.
Ginsburg opens with a bang, immediately describing the decision as one that will have sweeping consequences:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.
She frames the decision as one that denies women access to healthcare, rather than as one that upholds religious liberty:
The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.
In a similar vein, she rejects that the birth control mandate should be seen as an act of government coercion, describing it instead as one that provides women with the ability to make their own choice:
Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.
She affirms her belief that religious organizations and for-profit corporations serve fundamentally different purposes and have fundamentally different rights (and throws some shade at the majority in the process):
Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. … The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.
She claims that the majority has actually undermined the very principle, religious freedom, it claimed in its ruling to have upheld:
Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.
She writes that the majority has pushed the Religious Freedom Restoration Act past its original intent:
In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
By: Elias Isquith, Salon, June 30, 2014
“What’s Next?”: Yes, Some Corporations Can Pray — And You’ll All Pay
In its decision Monday in the Hobby Lobby case, the conservative Supreme Court majority that upheld corporations’ religious objections to birth control spends an inordinate amount of time defending itself from the reasoning and wrath of Justice Ruth Bader Ginsburg’s dissent.
Justice Samuel Alito, whose name is on the decision, alludes no fewer than 24 times to the “principal dissent,” which Ginsburg wrote for the four-member minority. Plainly, he felt Ginsburg’s powerful intellect breathing down his neck as he tried to find a path to upholding the Hobby Lobby parties’ attack on women’s rights without expanding corporate “personhood” too much.
He failed. Ginsburg concisely labels Alito’s ruling one of “startling breadth,” pointing out all the doors it opens to religious claims by business owners trumping the rights of their employees. She also observes that the majority’s answer to allowing business owners to opt out of covering their employees’ legitimate health needs is that “the general public can pick up the tab.”
In other words, the decision gives business owners the right to weasel out of their legal obligations by sticking you and me with the bill.
The Hobby Lobby case, as we reported earlier, has been percolating for months as yet another corporate challenge to the Affordable Care Act. It was brought originally on behalf of the pious owners of that privately held crafts chain, along with other private businesses. They asserted that their religious convictions were trampled by the Affordable Care Act’s mandate that medium and large employers cover contraceptives for their female employees without cost sharing—that is, without co-pays and deductibles.
The businesses pointed to a 1993 federal law, the Religious Freedom Restoration Act, which prohibits the government from imposing a “substantial burden” on a person’s exercise of religion, even in a generally enforced law. The court majority ruled that the law effectively pre-empts the contraceptive mandate in the ACA.
Eric Posner of the University of Chicago law school contends that, to the extent the majority relied on the RFRA, “Alito’s legal argument is stronger than Ginsburg’s.” But the law itself, he says, “is pretty dumb.”
Alito maintains that his decision is narrow, applying only to contraceptives, and only to “closely-held” companies — that is, not to publicly traded corporations.
Ginsburg doesn’t buy it. She asks how the ruling can be differentiated from those in which business owners pose religious objections to granting insurance coverage for “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia … and pills coated with gelatin (certain Muslims, Jews and Hindus); and vaccinations (Christian Scientists, among others).” She concludes, “the court … has ventured into a minefield.”
Indeed, Alito himself acknowledges that “other coverage requirements, such as immunizations … may involve different arguments about the least restrictive means of providing them” — that is, exempting the employer, and letting government step in.
To a great extent, the decision turns on whether a business is a “person.” This is the same minefield the court seeded in its infamous Citizens United case in 2010, when it held that campaign finance laws limiting corporate contributions violated corporations’ free-speech rights. The detonation of those mines has laid waste to the electoral process, turning it into a playground for corporate interests. (More of a playground, anyway.)
Here the court’s majority rules that a privately held company is, in effect, a “person” that can express religious convictions. Alito sugarcoats that finding, acknowledging that corporate personhood is a “fiction,” but one designed to “provide protection for human beings.”
Ginsburg also picks that assertion clean. “The exercise of religion is characteristic of natural persons, not artificial legal entities,” she writes, quoting retired Justice John Paul Stevens as having observed in the Citizens United case that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.”
Today’s decision invests them with all the consciences, beliefs, thoughts, and desires of characters from Tolstoy. And that’s a lot.
Alito and Justice Anthony Kennedy, in a separate concurrence, argue that the federal government has already offered an accommodation to nonprofit organizations that object to the contraception mandate — they can cede the responsibility for the coverage to their insurers, who cover their own expenses via a rebate on a federal tax. They ask: Why not extend that break to closely held companies?
(That’s how the general public would end up subsidizing the religious discrimination practiced by Hobby Lobby’s owners.)
What Kennedy and Alito seem to miss is that those nonprofit groups didn’t gain the exemption because they were nonprofit, but because their exclusive purpose was religious, not commercial. “The court forgets that religious organizations exist to serve a community of believers,” Ginsburg writes. “For-profit corporations do not fit that bill.”
It will be said that Monday’s decision walked a fine line, giving the Hobby Lobby owners what they sought without opening the floodgates to religious objections to a wide range of laws and regulations.
The court has signaled that it’s open as never before to claims by private businesses for exemptions from laws that apply to the rest of us, based on religious beliefs that can’t be objectively verified. And if they win, we’ll pay. Ginsburg’s question is apt: What’s next?
By: Michael Hiltzik, Columnist, The Los Angeles Times: Published in The National Memo, June 30, 2014
“Artificially Polarizing The Country”: Redistricting Reform Should Be Priority Number One
I became political aware at a young age and took a keen interest in the 1980 Republican primaries when I was only nine and ten years old. I still have cartoons I drew at the time that depicted Ronald Reagan as a warmonger intent on blowing up the world with nuclear weapons. This wasn’t something I learned from my parents. It was my own opinion. In retrospect, it was a little bit alarmist. I should have been worried about other things, like the long-term destruction of the middle class or a propensity to sell TOW missiles to Iran to pay a ransom for hostages held by Hizbollah in order to illegally transfer the proceeds to the Contras in Nicaragua. But, a nine year old’s capacity to imagine evil only goes so far.
When I see a book title like Tip and the Gipper: When Politics Worked, I want to claw my eyeballs out. Yet, I do understand what Chris Matthews is pining for, and it isn’t the fjords. However much Tip O’Neill and Ronald Reagan disagreed, they were civil to each other, and they knew how to strike a deal without threatening to default on the country’s debts. For Washington insiders of a certain age, there is a keen sense of nostalgia for the old days when politicians didn’t go home to their districts every weekend but stayed in town and socialized with each other.
Perhaps no one represents this group better than Cokie Roberts, who was almost literally raised in the Capitol Building. Her father, Hale Boggs, represented Louisiana’s 2nd District in 1941-43 and then from 1947 to 1972, when his plane disappeared in Alaska. By the time of his death, he had risen to be the Majority Leader, the same position held today by Eric Cantor. By that time, Cokie Roberts was an adult, but her mother, Liddy Boggs, went on to represent the New Orleans-based district until she retired to look after her dying daughter (Cokie’s sister) in 1990. I found a set of interviews that Ms. Roberts did with the Office of the Historian of the House of Representatives in 2007 and 2008, (you can read the interviews here in .pdf form) in which she describes her life growing up in the corridors of power and how things have changed.
In the following excerpt, she laments the use of the gerrymander, which she calls “picking your own voters.” In her opinion, the increasing efficiency with which the political parties draw the congressional maps is one of the main reasons why Congress is so deadlocked. Keep in mind that she said this in 2008, before things got even worse after the 2010 census and subsequent redrawing of district maps.
ROBERTS: I think that what this business of picking your voters—first of all, is so anti-democratic—it does a few very, very bad things. It creates a far more partisan chamber because you only worry about getting attacked from the true believers of your own party in a primary rather than a general election. Look what just happened to Chris [Christopher B.] Cannon as a perfect example of that.
You do only represent people who are just like you, so that your desire or even ability to compromise is far less than it used to be. I’ll give you an example. Bob Livingston used to represent a district that was 30- percent black. So he voted for fair housing, he voted for Martin Luther King holiday, he voted for a variety of things that were not the things that people whose representative in the state legislature was David Duke expected him to do. But he could explain to the yahoos in his district that he had to do it because of the black constituency when it was actually stuff that he wanted to do. Then it was redistricted to be lily-white conservative Republicans, and, you know, it’s almost impossible for that person—it was [David] Vitter, I don’t know who it is now—to do that. You just have to be fighting your constituency all the time to do something that would be a sort of national interest thing to do. And that’s true on both sides. It just makes legislating and governing much, much harder.
The President [George W. Bush], actually, was talking to me—I don’t often get to say, “The President was talking to me about it,” {laughter}—when I went with him to meet the Pope. We were talking about immigration, and he’s, you know, he’s basically just furious about immigration, about the failure of the bill, and he said, “It’s all about the way districts are drawn.” And it is fundamentally anti-democratic because the whole idea is you get to throw these people out. In 2006, I must say I was heartened, not for partisan reasons, but I thought they had drawn the districts so cleverly that you’d never be able to register that vote of no confidence, which an off-year election is—it’s either a vote of confidence or no confidence—I was afraid that that had been taken away from the voters, which would really be different from what the Founders had in mind. So the fact that even with that, you were able to change parties and register that vote was heartening, but it’s much harder than it should be.
There has been some debate recently about whether or not Justice Ginsburg should strategically retire from the Supreme Court to prevent a Republican president from appointing her successor. Ginsburg defends her continued presence of the Court by arguing that President Obama will be succeeded by a Democrat because “The Democrats do fine in presidential elections; their problem is they can’t get out the vote in the midterm elections.” She’s probably right in her prediction about Obama’s successor, but she is definitely correct that the Democrats have trouble getting out their vote in midterm elections. With the districts drawn the way there are, this threatens to prevent the people from expressing their vote of confidence or no confidence.
According to the Cook Political Report, the Democrats should have won the 2012 House elections.
By Cook’s calculations, House Democrats out-earned their Republican counterparts by 1.17 million votes. Read another way, Democrats won 50.59 percent of the two-party vote. Still, they won just 46.21 percent of seats, leaving the Republicans with 234 seats and Democrats with 201.
It was the second time in 70 years that a party won the majority of the vote but didn’t win a majority of the House seats, according to the analysis.
So, there are really two things here worthy of consideration. The first is that the gerrymander has the effect of artificially polarizing the country by creating districts that are only really contestable in primary, rather than general elections. Politicians are punished for cooperating more than they should be.
The second problem is a partisan one that only hurts the left. Democrats get less seats than they should have.
Yet, the first problem hurts the left, too, because it leads to dysfunctional government, which leads to a general disdain of government in the populace, which creates distrust about the government’s ability to do big things.
For these reasons, I believe that progressives should consider redistricting reform their top priority. Unless we can solve this problem, we will never be competing on a level playing field, and our ability to do great things will continue to erode.
Unlike Chris Matthews and Cokie Roberts, I don’t want to go back to some idyllic time of bipartisan cooperation that barely existed in reality, but I do want a fair shake and a government that works again.
By: Martin Longman, Washington Monthly Political Animal, December 28, 2013
“Acknowledging The Usual Suspects”: Justice Ginsburg Says The Supreme Court Is “One Of The Most Activist”
Justice Ruth Bader Ginsburg, 80, vowed in an interview to stay on the Supreme Court as long as her health and intellect remained strong, saying she was fully engaged in her work as the leader of the liberal opposition on what she called “one of the most activist courts in history.”
In wide-ranging remarks in her chambers on Friday that touched on affirmative action, abortion and same-sex marriage, Justice Ginsburg said she had made a mistake in joining a 2009 opinion that laid the groundwork for the court’s decision in June effectively striking down the heart of the Voting Rights Act of 1965. The recent decision, she said, was “stunning in terms of activism.”
Unless they have a book to sell, Supreme Court justices rarely give interviews. Justice Ginsburg has given several this summer, perhaps in reaction to calls from some liberals that she step down in time for President Obama to name her successor.
On Friday, she said repeatedly that the identity of the president who would appoint her replacement did not figure in her retirement planning.
“There will be a president after this one, and I’m hopeful that that president will be a fine president,” she said.
Were Mr. Obama to name Justice Ginsburg’s successor, it would presumably be a one-for-one liberal swap that would not alter the court’s ideological balance. But if a Republican president is elected in 2016 and gets to name her successor, the court would be fundamentally reshaped.
Justice Ginsburg has survived two bouts with cancer, but her health is now good, she said, and her work ethic exceptional. There is no question, on the bench or in chambers, that she has full command of the complex legal issues that reach the court.
Her age has required only minor adjustments.
“I don’t water-ski anymore,” Justice Ginsburg said. “I haven’t gone horseback riding in four years. I haven’t ruled that out entirely. But water-skiing, those days are over.”
Justice Ginsburg, who was appointed by President Bill Clinton in 1993, said she intended to stay on the court “as long as I can do the job full steam, and that, at my age, is not predictable.”
“I love my job,” she added. “I thought last year I did as well as in past terms.”
With the departure of Justice John Paul Stevens in 2010, Justice Ginsburg became the leader of the court’s four-member liberal wing, a role she seems to enjoy. “I am now the most senior justice when we divide 5-4 with the usual suspects,” she said.
The last two terms, which brought major decisions on Mr. Obama’s health care law, race and same-sex marriage, were, she said, “heady, exhausting, challenging.”
She was especially critical of the voting rights decision, as well as the part of the ruling upholding the health care law that nonetheless said it could not be justified under Congress’s power to regulate interstate commerce.
In general, Justice Ginsburg said, “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”
The next term, which begins on Oct. 7, is also likely to produce major decisions, she said, pointing at piles of briefs in cases concerning campaign contribution limits and affirmative action.
There is a framed copy of the Lilly Ledbetter Fair Pay Act of 2009 on a wall in her chambers. It is not a judicial decision, of course, but Justice Ginsburg counts it as one of her proudest achievements.
The law was a reaction to her dissent in Ledbetter v. Goodyear Tire and Rubber Company, the 2007 ruling that said Title VII of the Civil Rights Act of 1964 imposed strict time limits for bringing workplace discrimination suits. She called on Congress to overturn the decision, and it did.
“I’d like to think that that will happen in the two Title VII cases from this term, but this Congress doesn’t seem to be able to move on anything,” she said.
“In so many instances, the court and Congress have been having conversations with each other, particularly recently in the civil rights area,” she said. “So it isn’t good when you have a Congress that can’t react.”
The recent voting rights decision, Shelby County v. Holder, also invited Congress to enact new legislation. But Justice Ginsburg, who dissented, did not sound optimistic.
“The Voting Rights Act passed by overwhelming majorities,” she said of its reauthorization in 2006, “but this Congress I don’t think is equipped to do anything about it.”
Asked if she was disappointed by the almost immediate tightening of voting laws in Texas and North Carolina after the decision, she chose a different word: “Disillusioned.”
The flaw in the court’s decision, she said, was to conclude from the nation’s progress in protecting minority voters that the law was no longer needed. She repeated a line from her dissent: “It is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Chief Justice John G. Roberts Jr. wrote the majority opinion, and he quoted extensively from a 2009 decision that had, temporarily as it turned out, let the heart of the Voting Rights Act survive. Eight members of the court, including Justice Ginsburg, had signed the earlier decision.
On Friday, she said she did not regret her earlier vote, as the result in the 2009 case was correct. But she said she should have distanced herself from the majority opinion’s language. “If you think it’s going to do real damage, you don’t sign on to it,” she said. “I was mistaken in that case.”
Some commentators have said that the two voting rights decisions are an example of the long game Chief Justice Roberts seems to be playing in several areas of the law, including campaign finance and affirmative action. Justice Ginsburg’s lone dissent in June’s affirmative action case, leaving in place the University of Texas’ admissions plan but requiring lower courts to judge it against a more demanding standard, may suggest that she is alert to the chief justice’s apparent strategy.
Justice Ginsburg is by her own description “this little tiny little woman,” and she speaks in a murmur inflected with a Brooklyn accent. But she is a formidable force on the bench, often asking the first question at oral arguments in a way that frames the discussion that follows.
She has always been “a night person,” she said, but she has worked even later into the small hours since her husband, Martin D. Ginsburg, a tax lawyer, chef and wit, died in 2010. Since then, she said, there is no one to call her to bed and turn out the lights.
She works out twice a week with a trainer and said her doctors at the National Institutes of Health say she is in fine health.
“Ever since my colorectal cancer in 1999, I have been followed by the N.I.H.,” she said. “That was very lucky for me because they detected my pancreatic cancer at a very early stage” in 2009.
Less than three weeks after surgery for that second form of cancer, Justice Ginsburg was back on the bench.
“After the pancreatic cancer, at first I went to N.I.H. every three months, then every four months, then every six months,” she said. “The last time I was there they said come back in a year.”
Justice Ginsburg said her retirement calculations would center on her health and not on who would appoint her successor, even if that new justice could tilt the balance of the court and overturn some of the landmark women’s rights decisions that are a large part of her legacy.
“I don’t see that my majority opinions are going to be undone,” she said. “I do hope that some of my dissents will one day be the law.”
She said that as a general matter the court would be wise to move incrementally and methodically. It had moved too fast, she said, in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The court could have struck down only the extremely restrictive Texas law before it.
“I think it’s inescapable that the court gave the anti-abortion forces a single target to aim at,” she said. “The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures.”
The question of same-sex marriage is also in flux around the nation. In June, the court declined to say whether there was a constitutional right to same-sex marriage, allowing the issue to percolate further. But Justice Ginsburg rejected the analogy to the lesson she had taken from the aftermath of the Roe decision.
“I wouldn’t make a connection,” she said.
The fireworks at the end of the last term included three dissents announced from the bench by Justice Ginsburg. Such oral dissents are rare and are reserved for major disagreements.
One was a sharp attack on Justice Samuel A. Alito Jr.’s majority opinion in a job discrimination case, and he made his displeasure known, rolling his eyes and making a face.
Justice Ginsburg said she took it in stride. “It was kind of a replay of the State of the Union, when he didn’t agree with what the president was saying” in 2010 about the Citizens United decision. “It was his natural reaction, but probably if he could do it again, he would have squelched it.”
By: Adam Liptak, The New York Times, August 24, 2013
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