Thursday, July 03, 2014

Splitting those hairs

Nicholas Little's essay starts out:
In some ways, you have to hand it to Justice Alito. It is uncommon for a Supreme Court Justice to get every single question in a case wrong, but that is exactly what the newest member of the Court’s conservative majority managed with the contraception mandate cases.
Oh, snap, as the kids say.

And among the other points he makes is this:
The reams of facts and figures showing how women are discriminated against in health care, and pay 68% more out of pocket than men, and how reproductive health is perhaps the most central factor in equality for women is dismissed. All because a corporation that profits from making contraceptives doesn’t want to provide them, and five men agree. In my years of reading legal opinions, I can’t think of a dissent that so surgically eviscerates an opinion than Justice Ginsburg’s does on this point.
And this:
So, in the Brave New World of corporate religious exercise rights, making money off something is just fine and dandy, but providing insurance for others to use it will damn you to hell. This belief doesn’t bear up to scrutiny, and the case should have gone no further once it was clear that Hobby Lobby’s desire here was scoring a point not defending a genuine belief.
And this, exposing one of Alito's stupidest points (my italics):
According to the majority, for-profit corporations now have religious freedom rights. Commentators have been quick to point out that Alito sought to restrict this to closely held companies (which includes some of America’s largest corporations, such as Koch Industries and Bechtel); in the opinion the only thing he says regarding publicly traded corporations is he doesn’t think they will apply for such exemptions.

Oddly enough this doesn’t fill me with a great degree of confidence. The problem is, every piece of legislative history, and there is plenty of it, makes clear that RFRA was not intended to cover for-profit corporations. But the majority decided to play its textualist reindeer games, and subvert the clear intention of Congress (the elected branch) and instead impose its own view on the country, and elevate corporations to the same level, if not higher than, real people. I am not sure what will happen when Dell or Dole Foods attends your church next Sunday and sits in the pew next to you, but I can’t imagine the parking situation will be improved. Anyway, through a breathtaking piece of judicial activism on the part of the conservative majority, corporations now have free exercise of religion. Or at least Christian owned ones do. We need to wait and see if a Muslim-owned corporation would have been given the same leeway by the Court.

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