Relax. This is not a slippery slope.
So Justices Samuel Alito, writing for the majority, and Anthony Kennedy, writing in concurrence, take pains to assure us in the wake of the Supreme Court’s latest disastrous decision. The same august tribunal that gutted the Voting Rights Act and opened the doors for unlimited money from unknown sources to flood the political arena now strikes its latest blow against reason and individual rights.
By the 5-4 margin that has become an all-too-familiar hallmark of a sharply divided court in sharply divided times, justices ruled Monday that “closely held” corporations (i.e., those more than half owned by five people or fewer) may refuse, out of “sincerely held” religious beliefs, to provide certain contraceptive options to female employees as part of their healthcare package. The lead plaintiff was Hobby Lobby, a chain of arts and crafts stores based in Oklahoma and owned by the Green family, whose Christian faith compels them to pay employees well above minimum wage, play religious music in their stores, close on Sundays and donate a portion of their profits to charity.
Unfortunately for their employees’ reproductive options, that faith also compels them to object to four contraceptive measures (two IUDS, two “morning after” pills) that they equate with abortion. Most gynecologists will tell you that’s a false equation, but Alito said that wasn’t the point.
Rather, the point was whether Hobby Lobby was sincere in its mistaken belief. That it was, the Court decided, meant that the Affordable Care Act provision requiring Hobby Lobby to provide the disputed contraceptive measures violated the 1993 Religious Freedom Restoration Act, which prevents government from doing anything that “burdens” the free exercise of religion.
Apparently we now have greater solicitude for the feelings of corporate “persons” than for the health of actual persons. This ruling places women’s reproductive options at the discretion of their employers, which is awful enough. But it has troubling implications beyond that.
Not to worry, writes Alito, this ruling is “very specific.” Not to fret, concurs Kennedy, this is not a ruling of “breadth and sweep.” Let no one be mollified by these assurances.
Under the court’s logic, after all, it’s difficult to see why a corporation owned by a family of devout Jehovah’s Witnesses can’t deny blood transfusions to its workers. Or why one owned by conservative Muslims can’t deny employment to women. Or why one owned by evangelical Christians can’t deny service to gay men and lesbians.
This is not just hypothetical. In the last decade, we’ve seen Christian pharmacists claim faith as a reason for refusing to fill — and in some cases, confiscating — contraceptive prescriptions. We’ve seen Muslim cabbies use the same “logic” in declining to serve passengers carrying alcohol.
What is the difference between that outrageous behavior and Hobby Lobby’s? By what reasoning is the one protected, but the others are not? It is telling that Alito and Kennedy are virtually silent on this question.
Apparently, it’s a narrow ruling because they say it’s a narrow ruling. Apparently, we are simply to trust them on that. But even if you could take them at their word, this would be a frightening decision, the imposition of religion masquerading as freedom of religion. And the thing is: You can’t take them at their word.
So here we stand: a corporate “person” celebrating a dubious victory as millions of actual persons wonder if they’ll have birth control tomorrow. Or be denied a prescription, a job, a wedding cake.
Not a slippery slope? They’re right. This is a San Francisco sidewalk coated with ice, slicked with oil and littered with banana peels. God help us.
And look out below.