“It’s the first time that our court has said that a closely held corporation has the rights of a person when it comes to religious freedom,” she said during a Q&A at the Aspen Ideas Festival. “I find it deeply disturbing that we are going in that direction.”
“It’s very troubling that a sales clerk at Hobby Lobby who needs contraception, which is pretty expensive, is not going to get that service through her employer’s health care plan because her employer doesn’t believe she should use birth control,” she continued.
Tuesday Reads: Live and Let Live EditionPosted: July 1, 2014
Why is it that many religious people just cannot live without imposing their views on others? That’s one of the things I’ve been thinking about since the reliably patriarchal side of SCOTUS took one more step to force their favorite flavor of religion on the rest of us. Today’s photo montage is via “The Invisibles”. It is a montage of gay couples during the times when theirs was a “love that dare not speak its name”. There are so many folks that choose to live outside of the conventions of the society into which they were born. I was raised to think that this country was born of the dreams of folks wanting to establish a place where they could not be persecuted for not following the majority’s norms. Our country has not had perfect beginnings. But up until recently, I always felt that we were at least creeping towards a “more perfect union”.
While the plight of the GLBT community is improving and appears to have some forward momentum, there are others that are being shoved back into conformity with lives and values not of their choosing. This includes women, immigrants and many minorities. Why do others feel they have to justify their own lives by persecuting others? We’re headed towards our nation’s birthday. What has happened to the idea of creating our “more perfect union” with “liberty and justice for all”?
So, first I feel like I have to add more to the discussion on the SCOTUS decision that allows privately and tightly held corporations that are not engaged in the business of religion to hold religious beliefs identical to the owners that are supposedly separate from the corporation enough to be indemnified by any illegal activities it undertakes. Hillary Clinton made her views clear on the subject as did Justice Ginsberg writing for the dissent. I will rely on their words here. Hillary Clinton calls the decision “deeply disturbing”.
On Monday, the Supreme Court sided with Hobby Lobby on the company’s challenge to the Affordable Care Act’s contraceptive mandate, ruling that the mandate, as applied to “closely held” businesses, violates the 1993 Religious Freedom Restoration Act. But the divided court’s 5-4 decision included a dramatic dissent from Justice Ruth Bader Ginsburg, who called the majority opinion “a decision of startling breadth.” Ginsburg read a portion of her decision from the bench on Monday.
Addressing the majority of her colleagues — including all but one of the six men sitting on the Supreme Court — Ginsburg wrote:
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.
The justice goes on to criticize the opinion’s interpretation of the religious freedom law, writing that “until today, religious exemptions had never been extended to any entity operating in ‘the commercial, profit-making world.’”
The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force 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.
“In sum,” Ginsburg adds about the free exercise claims at the heart of this case,“‘[y]our right to swing your arms ends just where the other man’s nose begins.’”
Justice Alito got a little prickly in his majority opinion about Ginsburg’s strong criticism of their take on the case:
As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women employed by Hobby Lobby.” Post, at 2.1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
Ginsburg seems to reply to Alito by suggesting that what Alito sees as a narrow, limited decision is essentially an invitation for lots of future challenges on religious grounds: “Although the Court attempts to cabin its language to closely held corporations,” she writes, “its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate.”
Here are seven more key quotes from Ginsburg’s dissent in Burwell v. Hobby Lobby:
- “The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage”
- “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”
- “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.”
- “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”
- “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”
- “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.”
- “The court, I fear, has ventured into a minefield.”
You can read the full dissent here. (It starts on page 60.)
The court attempted a narrow decision but crept into an area of corporate law that could create an interesting situation. Usually, corporations are considered distinct from their owners. Hobby Lobby is a corporation tightly held by a family so the majority view basically carved out this type of corporation and said “it’s different”. However, how can you indemnify owners from corporate malfeasance AND say that this specific corporation that doesn’t have a religious mission reflects this set of owner’s pet superstitions? Could the justices have unintentionally left a back door open to challenge the very basis of incorporation which is to make any corporation its own entity?
The decision’s acknowledgment of corporations’ religious liberty rights was reminiscent of Citizens United v. Federal Election Commission, a 2010 ruling that affirmed the free speech rights of corporations. Justice Alito explained why corporations should sometimes be regarded as persons. “A corporation is simply a form of organization used by human beings to achieve desired ends,” he wrote. “When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”
Justice Ginsburg said the commercial nature of for-profit corporations made a difference.
“The court forgets that religious organizations exist to serve a community of believers,” she wrote. “For-profit corporations do not fit that bill.”
I wanted to point out the anniversary of a sad day in New Orleans history. I’m not sure how many of you know about the UpStairs Lounge fire of 1973. The arson mass murder of GLBT stands as the largest of its kind in modern history.
On June 24, 1973, an arsonist set fire to a gay bar in New Orleans called the Upstairs Lounge, killing 32 gay men and women in what has gone down in history as thelargest gay mass murder in U.S. history.
Today is the 41st anniversary of that tragedy, which has been documented by Robert L. Camina in the new film “Upstairs Inferno”. According to the first official teaser trailer below, the horrific event led to even more reprehensible acts in its wake – several bodies from within the club were never claimed by family members, those survivors featured in the news went on to lose their jobs and livelihoods, and the New Orleans police department lagged its feet and attempted to cover up the deadly crime.
To this day, no one has ever been charged with setting fire to the UpStairs Lounge.
For a complex array of reasons, including homophobia, shame, and despair, the fire and its victims languished in obscurity for years, not taking its proper place in the broader sweep of LGBT history, but this is quickly changing.
“Upstairs”, my musical tragedy commemorating the fire and honoring its victims premiered last year in New Orleans to sold-out audiences, as part of the 40th anniversary memorials and Pride events. A portion of the musical is now playing at the West Village Musical Theatre Festival in New York.
A new book, “The UpStairs Lounge Arson: Thirty-Two Deaths in a Louisiana Gay Bar”, released just last month, is the most extensively-researched and carefully-told history of the subject.
And “Upstairs Inferno”, a documentary by acclaimed filmmaker Robert Camina is currently in post-production.
In addition, Delery, Camino, and I are advocating the inclusion of the UpStairs Lounge site on the National Register of Historic Places.
To commemorate the anniversary of the fire, I spoke with Camina about his documentary.
The lion’s share of published research about the fire comes from Johnny Townsend, author of “Let the Faggots Burn”, and Clay Delery. Did you interview them for the piece and what did you learn?
Well of course Townsend had a lot to contribute, because without his efforts many years ago to interview people, many of the stories would have been lost. So I think he brought a lot of insight to the tragedy that, since so many have passed on, we are not able to access.
Did you get to talk to anyone that Delery and Townsend did not get to talk to?
I don’t think they interviewed Francis Dufrene. We were able to interview him. He was a survivor of the fire. He slipped through the bars and jumped and landed on the pavement. He suffered third-degree burns. He gave us a distinctive perspective of what it was like in the middle of it when the fire started, so we definitely learned a little bit of what it was like the emotions just the mood and a frame of mind of what people going through in there.
As far as you can tell, what was the UpStairs lounge like as a bar?
It was a very comfortable place. Everyone we talked to said that the patrons were like a family. And the word that has come up that you’re very familiar with is “Sanctuary”.
Yes, that’s why I opened my musical with a song of that title. And of course, when a place that is considered a sanctuary is invaded and ruined, it has a profound impact on a community. And I’m not sure I had a whole sense of the impact that it had until I was there last year for the 40th Anniversary to see how the community responded to the memorial events and the play.
Supreme Court Justice Antonin Scalia made an appearance at the Lanier Theological Library in Houston, Texas on Friday, where he claimed that the success of capitalism was deeply tied to the nation’s religious values.
“While I would not argue that capitalism as an economic system is inherently more Christian than socialism … it does seem to me that capitalism is more dependent on Christianity than socialism is,” Scalia, a devout Catholic, said during his speech,according to the Houston Chronicle. “For in order for capitalism to work — in order for it to produce a good and a stable society — the traditional Christian virtues are essential.”
Unfortunately, I can’t seem to read the part in the new testament where the jesus dude said ANY of that. Evidently, we’re supposed to all follow his brand of religion even if we find it to be complete bunk.
Why can’t we just live and let live?
What’s on your reading and blogging list today?