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…]

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.

[Read more…]

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.

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…]