Last week, the U.S. Supreme Court issued two decisions that the Court’s conservative majority and the larger conservative movement pretended were about “religious freedom.”
In the one case, involving the Hobby Lobby chain of craft stores and the Conestoga Wagon Specialties company, which makes wood cabinets, the majority ruled that a federal law guaranteeing “religious freedom” means family-owned corporations don’t have to provide insurance coverage for contraception under the Affordable Care Act.
That decision, which the Court issued on June 30, seemed to leave in place the law’s provision governing nonprofit organizations in place. The law allowed nonprofit organizations to, if they wished, transfer the delivery of free contraception to others. However, in the second ruling, which the Court handed up on July 3 and specifically involved Illinois’s Wheaton College, a conservative Christian institution, the court majority temporarily exempted it from having to comply at all with the contraception provisions of the law.
Critics of the decisions, which produced extremely sharp dissents from the court’s three female justices, said they have stripped women workers of any guarantees that contraception coverage will automatically be part of their health insurance. That’s because these rulings aren’t about “religious liberty.” They actually have an entirely different purpose: jerry-rigging a legal framework around the efforts of the White Christian right to impose its religious beliefs on other Americans. The Christian Right has been pursuing that goal, of course, for decades. But it’s become clear in recent years that it was losing control on two of its most important issues: women’s reproductive rights, and the rights of gays and lesbians, especially regarding same-sex marriage. So, now they’ve re-cast themselves as “victims” whose “freedom” to adhere to their religious beliefs is being violated. It’s a scam the conservative political movement is pushing in brazen fashion—as exemplified by a strikingly apt word in the Hobby Lobby opinion written by Justice Samuel A. Alito.
That word is “fiction.”
On page 18 of the majority opinion, Alito acknowledges that defining corporations as persons in legal terms is a “fiction,” but asserts that “the purpose of this fiction is to provide protection for human beings … When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of those people.” A moment later, Alito defines “those people” in this way: “And protecting the free-exercise rights of closely-held corporations thus protects the religious liberty of the humans who own and control the companies.”
As Washington Post columnist Dana Milbank pointedly noted two days before the Wheaton College decision, that sentence does not contain any mention of the rights of these corporations’ employees. In other words, in declaring that a family-owned corporation – which, after all, is an artificial entity created in accordance with governmental regulations – can, in effect, take on the religious coloration of “those who own and control” it, the court’s conservative bloc was indulging in another of the “fictions” by which it’s been trying to hold back the expansion of democracy for more than a decade.
That became even clearer once it issued the Wheaton College ruling.
Given that it is indeed a “fiction” to pretend the ruling was not a politically driven gift to the Christian right, here are some questions to think about:
How long will it be before some conservative Christian business owners require their female employees to wear dresses (no slacks, please) down to their ankles? And for all employees to genuflect before crosses set up at entrances to their businesses? And to join them in “prayer sessions” before and after the workday? And to attend only those houses of worship they “approve” of?
And how long will it be before some White business owners claim—as in the Jim Crow days—that their “religious beliefs” require that they not serve or employ Black Americans? Or, will they try that on Muslim Americans first? Or gays and lesbians? Or Hispanic Americans? Or Jewish Americans?
If those possibilities sound far-fetched to you, you’ve forgotten that for most of American history, the “White” version of Christianity was part and parcel of the many crackpot justifications for the exclusion and oppression of women and Americans of color. And you’ve forgotten that the Court’s conservative majority crafted numerous “fictions” in its 2010 Citizens United decision to enable corporations to make unrestricted political contributions, and again in the 2013 decisions that significantly narrowed affirmative action and voting rights protections.
Those facts underscore that there’s little in the Christian right’s efforts to limit the freedom of others that the Supreme Court’s “5 political operatives” (as a headline in The Huffington Post so accurately put it) will consider “far-fetched.”
Lee A. Daniels is a longtime journalist based in New York City. His latest book is Last Chance: The Political Threat to Black America.