The Hobby Lobby decision has many implications about the future of civil life in the United States and how, now, religious institutions may, under the civil law, intrude upon it. Certainly, one must agree with Justice Ginsburg that regardless of Justices Alito's caveats, the tide unleashed by the decision of the Right-wing Five is not going to stop at the shoreline of the separation of church and state any time soon. And for the long-range future of the United States, that is the most significant element of the decision.
That is not to say that it does not also have horrible outcomes for women and their sexual behavior, their private lives, and their private decision-making. As Andy Borowitz so cogently put it, "Supreme Court Majority Calls Case a Dispute between Women and People." Chiming in was everyone's favorite very-far-right GOP Senator Mike Lee of Utah who said that most women who use contraceptives do so for "recreational purposes." Like that's supposed to make a difference on whether or not a public corporation can discriminate against women on their choice of FDA approved contraceptives, on religious grounds. By the way, most folks label Lee as a "Tea Partier," as if such types really differ from "regular Republicans." Well, they do, but not on policy (except perhaps around the edges on immigration policy, which Eric Cantor found to his regret, at least among the 13% of eligible voters in his district who bothered to vote). If you look closely, it is almost always just a matter of style and wording.
There are a variety of other important negative aspects of this decision that are being widely and well dealt with from the Left. In my view, the most important one is how this decision ushers our one further, very big, step down the road to theocracy. For the Supreme Court has held that in matters of legislation, law, and public programs, the religious positions of one person (and of course they have recently reaffirmed the original 1880s railroad-lawyers-Court decision that corporations are people (see "Citizens United"), can outweigh the religious position, or non-religious but ethical/moral position, of another.
For the purposes of this case, Hobby Lobby claimed that its religious position on certain contraceptives and how they act in the body exempted them from being forced to cover those medications under the Affordable Care Act. That what the Hobby Lobby, a well-known politically active right-wing company was really after was the ACA was revealed by the fact that they went along with coverage of those same contraceptives when they provided private insurance for their employees before the passage of the ACA. But that's another matter. Also another matter is that the fact that they ascribed to certain contraceptives abortifacient functions that the science of their mode-of-action shows to be a falsity. But we know well that facts are never a concern to the Right when it is pursuing its own political and economic agenda. In this case much more importantly is the question of whether or not, in the sector of public programs one position on abortion itself should outweigh another. Again a matter for another time. One cannot assume that women who use contraceptives have not considered the religious implications of such use, for themselves, and have come to the conclusion that doing soon was compatible with their religious beliefs. The same reasoning of course applies to women who have abortions.
And so, what the Court has done here is to take one set of religious beliefs, that of the owners of a company incorporated under public law (and gaining the tax benefits of so doing), and placed them above the religious beliefs of their employees, all in the name of religious freedom. In pre-Enlightenment 16th and 17th century Europe, a time that Justice Scalia has pined for in the past, Europeans of various countries slaughtered each other over similar questions of opposing religious doctrines. Back then it wasn't over such matters as contraception (or even abortion, because Catholic doctrine, set down several hundred years previously by St. Thomas Aquinas, held that abortion was OK up until the "time of quickening," 12-16 weeks). People were burned at the stake for, for example, holding that the wine and the wafer offered at the end of services really were, or were really just symbolic of, the blood and body of Christ. People slaughtered each other over whether it was predestination or "good works" that determined whether or not one went to heaven. And we, in the end, could have a civil war over, in part, the matter of whether my religious view of the use of contraceptives is right and yours is wrong.
The Hobby Lobby decision, as Justice Ginsburg implies (and please, I am not putting words in her mouth) opens up a Pandora's Box where endless litigation might be the least negative outcome. The First Amendment the constitution says, in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" This right-wing Republican Supreme Court, using its one-vote majority, has re-written that language. The Amendment now reads "Congress shall make no law that requires a person to comply with it if they claim a religious exemption, and the religious views of one group of citizens can be held to outweigh those of another group, by law;."
Religion, according to this decision, now becomes a/the central determinant of public policy, should an elected government choose to make it so and the Supreme Court of the time goes along with that interpretation of the Constitution. As I said earlier in this column, "Hobby Lobby" has placed this nation firmly on the path leading to the establishment of a Theocracy, that is a nation ruled by religious law. There are already certain leading Republicans, like the likely Dominionists Rick Santorum, Sarah Palin, and Mike Huckabee, who would be perfectly fine with that idea. Now that the Supreme Court has opened the door, more will soon follow them, as the Republican Party more and more becomes, in the words of MSNBC Commentator and Huffington Post Editor, Howard Fineman, the American Faith Party.
Look out, folks. That train is hurtling down the track. Two current books that provide pictures of what such a reality might look like are mine, "The 15% Solution" and Fred Rich's masterful "Christian Nation." Of course the classic in this genre is Margaret Atwood's "A Handmaid's Tale." At the rate we are going with such political decisions such as Hobby Lobby (and this case, just like "Citizens United" and all of those other right-wing precedents set by this court, is first and foremost a political one made by a set of Justices put into place by right-wing Presidents just so that they could make decisions like this one), unless some powerful forces organize to stop the process, we are well on our way to becoming an authoritarian theocracy.
This column was previously published on BuzzFlash@Truthout