They objected to filling out a one-page form

In January, the columnist Jamie Stiehm wrote in US News & World Report:

Et tu, Justice Sonia Sotomayor? Really, we can’t trust you on women’s health and human rights? The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year’s Eve in Times Square. Or maybe she’s just a good Catholic girl.

The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let’s be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing.

In a stay order applying to an appeal by a Colorado nunnery, the Little Sisters of the Poor, Justice Sotomayor undermined the new Affordable Care Act’s sensible policy on contraception. She blocked the most simple of rules – lenient rules – that required the Little Sisters to affirm their religious beliefs against making contraception available to its members. They objected to filling out a one-page form.

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The Vatican-led Supreme Court

How did we get here?

Wikipedia gives one quick rundown.

Other Catholic justices included Pierce Butler (appointed 1923) and Frank Murphy (appointed 1940). Some accounts note that Sherman Minton, appointed in 1949, was also a Catholic; however, during his time on the Court he was a Protestant, though his wife’s Catholic faith was noted at the time in relation to the notion of a “Catholic seat”.[71] Minton joined his wife’s Catholic faith in 1961, five years after he retired from the Court.[72] Minton was succeeded by a Catholic, however, when President Eisenhower appointed William J. Brennan to that seat. In fact, Eisenhower intently sought to appoint a Catholic to the Court—in part because there had been no Catholic Justice since Murphy’s death in 1949, and in part because Eisenhower was directly lobbied by Cardinal Francis Spellman of the Archdiocese of New York to make such an appointment.[73] Brennan was then the lone Catholic Justice until the appointment of Antonin Scalia in 1986, and Anthony Kennedy in 1988.

Like Sherman Minton, Clarence Thomas was not a Catholic at the time he was appointed to the Court. Thomas was raised Catholic and briefly attended Conception Seminary College, a Roman Catholicseminary,[74] but had joined the Protestant denomination of his wife after their marriage. At some point in the late 1990s, Thomas returned to Catholicism. In 2005, John Roberts became the third Catholic Chief Justice and the fourth Catholic on the Court. Shortly thereafter, Samuel Alito became the fifth on the Court, and the eleventh in the history of the Court. Alito’s appointment gave the Court a Catholic majority for the first time in its history.

And the Vatican’s triumph was complete.

Tenth rate, is it?

By way of refreshment – a bit of John Cleese and Michael Palin attempting to argue with Malcolm Muggeridge and Mervyn Stockwood the Bishop of Southwark about the merits and blasphemous nature of The Life of Brian. Muggeridge is extraordinarily rude and unpleasant, and Stockwood carries on like a Monty Python character himself.

Michael Palin was here on a book tour about 15 years ago and he gave a talk at a bookstore, with Q&A. During the Q&A he talked about this encounter, and said that it made him uncharacteristically shirty (his word). I can see why – Muggeridge and Stockwood breezily accuse them of lying, just for one thing. They’re poisonous. Dear dear Christianity, so bad for the character.

Never mind what the women think

Getting sick of Hobby Lobby? You know how it is – there are some subjects I’ll just keep poking at for days.

Marcia Greenberger, co-president of the National Women’s Law Center, has a post at Scotus blog. The NWLC filed an amicus brief in support of the government.

Taking as a given the companies’ sincere religious beliefs that certain forms of contraceptives cause abortions (even though scientifically and medically inaccurate as outlined here), the majority seriously errs by then also taking as a given the companies’ claim that the insurance requirement for their employees imposes a substantial burden.  According to the majority, the burden is substantial because the companies say it is.  The majority undertakes no legal analysis of this burden claim…

Which is the nature of religious claims, isn’t it, and part of what makes them so frustrating and so inappropriate to impose on other people. [Read more…]

Making them complicit

And of course just as everyone predicted, Hobby Lobby is only the beginning. The camel is halfway into the tent already, and there’s a whole long line of camels streaming toward the tent even now.

In a short, unsigned opinion, the court said that Wheaton College in Illinois, at least temporarily, does not have to comply even with compromise provisions in the law that the college says still violate its religious beliefs.

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Guest post: Wariness of making a converse error

Originally a comment by Seth on It turns out nice people are Nazis!

It’s not true, in general, that ‘nice people are Nazis’. But the converse was true; i.e., the average Nazi was a ‘nice’ and ‘good’ and ‘decent’ person, as measured by the standards of their peers. Upwards of five hundred thousand people (only half of them Germans) were involved in the Holocaust (which rendered extinct approximately twelve million people, about half of them Jewish); by far, the vast majority of these people were ‘just doing their jobs’, being nice and agreeable, attempting to make the world a better place. That was their intent (and the stated intent of every single National Socialist). That is one major reason why intent weighs very little next to consequence; sure, there’s a difference between first-degree murder and manslaughter, but that difference is much smaller than the difference between a convicted criminal and an unconvicted civilian. [Read more…]

Bishops and justices working together

More brilliant commentary on Hobby Lobby, this from Leslie Griffin, who co-blogs with Marci Hamilton, under the banner

Advocating for religious liberty, women’s rights and children’s rights

By “religious liberty” they don’t mean what The Catholic Five mean.

Today, in an ironic and shrewd decision, Burwell v. Hobby Lobby, five male Catholic Supreme Court Justices aided the project of the U.S. Catholic bishops to impose their opposition to all contraception on all American women. The opinion was ironic: four Justices who previously ruled that Congress lacked the authority to pass the Affordable Care Act required the government to pay for contraceptive services. The decision was shrewd; the Justices promoted contraceptive restrictions in two cases where the plaintiffs (the Green and Hahn families) were not Catholic. Today’s plaintiffs were morally opposed to only 4 of 20 FDA-approved methods of contraception. However, Catholic and other commercial enterprises will now be able, as Justice Ginsburg pointed out in dissent, “to exclude from their group health plans all forms of contraceptives.” With the Court’s help, the bishops moved a step closer to their goal of restricting contraceptive freedom for everyone.

A big step. The bishops must have been wetting themselves with joy all week.

The bishops’ fingerprints are all over the opinion in two ways. First, the taxpayers have to pay for contraceptive insurance for employees of religious for-profits, the Court ruled, because the government had previously decided to accommodate the religious non-profits who objected to contraception. The vociferous lobbying of the American Catholic bishops was the cause of that accommodation.

Second, the Court’s analysis of the “substantial burden” prong of the Religious Freedom Restoration Act (RFRA) is riddled with arguments from Roman Catholic moral theology about cooperation with evil. The bishops could have written that part of the opinion themselves.

That’s all the more disgusting because the bishops are evil. The bishops want women to die rather than have a lifesaving abortion to complete a miscarriage. The bishops order Catholic hospitals and healthcare networks not to provide such abortions. They order their subordinates to commit murder by negligence. They’re evil and they claim to be better than the rest of us.

Justice Alito provided an unconvincing theological response to Ginsburg’s persuasive attenuation argument. The Greens’ and Hahns’ belief that the four contraceptives cause abortion, he wrote, “implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” It is not for the Court, he concluded, to determine whether a burden is substantial or insubstantial; that is the moral judgment of the plaintiffs.

Interpreting statutory language like “substantial burden” is precisely what the Court is supposed to do. Instead, Alito invoked a classical Catholic analysis of the principle of cooperation with evil, even (in this case without Catholic plaintiffs) footnoting two books about Roman Catholic moral theology written in 1935 and 1949 by Jesuit priests Henry Davis and Thomas Higgins.

Cooperation with evil is it? Like…Nazism? Sadistic prisons for children of single mothers in Ireland? Sadistic prisons for children of First Nations parents in Canada?

No no no, not that kind of evil. Using contraception kind of evil.

The bishops couldn’t have done any better if they had written that part of the opinion themselves. Their anti-contraceptive theology started in 1930 and has never been updated to reflect American Catholic family and work life. Now, with the Court’s help, Catholic employers will be free to impose their morality on Catholic and non-Catholic employees alike because Justice Alito doesn’t want them to cooperate with the evil of reproductive liberty, which is supposed to be protected by the Constitution.

I’d better stop before I grind all my teeth to powder.

Without meaningful consideration of the impact on their employees

Marci Hamilton on the Hobby Lobby ruling.

It is simply a fact that five male Catholic Supreme Court Justices have now transformed what is already a bad law into a truly dangerous one, all for the apparent purpose of undermining women’s access to contraception. Whatever the legal reasoning, the optics are very bad on this one, and whether intentionally or not, they stoke the perception that the Justices are in league with the Catholic bishops in the latter’s attempt to turn the clock back on not just Roe v. Wade but also Griswold v. Connecticut, as Leslie Griffin argues here. 

Oh surely not. Just because they’re all Catholic and…

…wait…

This is, in fact, a sly opinion that not only delivers free exercise rights to for-profit corporations without meaningful consideration of the impact on their employees but also renders an interpretation of key elements of RFRA that render it a mightier sword than it ever was. RFRA’s ugly underbelly and its pretense to reflect the First Amendment are now in full view. 

Emphasis added. [Read more…]