This week Justice John G. Roberts finally revealed just how radical and far reaching the scope of his tenure will be.
We can now say with certainty that the most consistent characteristic of the Roberts-led court will be to make apparently incremental rulings that nonetheless carry potential for massive social, political and legal change (whilst boosting the conservative viewpoint).
Make no mistake, the five man (they were all men) ruling on Monday in the so-called Hobby Lobby case, which found that the Obamacare requirement that family-run corporations pay for insurance coverage for contraception violates a federal law protecting religious freedom, will be back in court under a new guise soon.
It was “a decision of startling breath,” Justice Ruth Bader Ginsburg wrote in her blistering 35-page dissent. The decision, she added, “opens the door to challenges from corporations over any law that they claim violates their religious liberty.”
But on Monday the court insisted that their ruling is narrowly targeted. The five men ruled that corporations controlled by religious families couldn’t be compelled to pay for contraception for their female employees, that is all.
On the surface it seems true. Their ruling seems to tilt solely at working women. On Monday Justice Samuel Alito said as much.
The five men ruled that compelling family-run companies to pay for forms of contraception that their faith could not approve of violated their religious rights. Simple.
But the scale of the potential implications alarmed Ginsburg. “The court forgets that religious organizations exist to serve a community of believers,” Ginsburg wrote. “For-profit corporations do not fit that bill.”
In fact it’s the first time in American history that the court had extended religious freedom protections to “the commercial, profit-making world,” she wisely noted.
But another aspect of this lamentable ruling startles me. It is clear that all five men saw something especially odious about the issue of female contraception. It seems to have struck them far less as a public health issue and more as a religious conundrum.
Read more: How Catholic are most Catholics?
The sight of five men denying women access to birth control (when we already know that 99 percent of sexually active women will use birth control at some point in their lives) made for illustrative viewing.
The court privileged corporations' so-called “religious consciences” over women’s individual choices about their own welfare, financial security and bodies, and because they did no one should be surprised that every women in the court voted against their ruling.
Some critics have already said that it’s not even a ruling that upholds religious liberty, so much as enshrine in law that opposition to abortion is the most important religious liberty in America.
Over 90 percent of American companies are potentially implicated in the court’s ruling. What if they all decide they will not cover certain medications based on their “religious principles?”
They may not take this road, but they could now. That’s when the sheer scale of this ruling comes to light.
Almost certainly, even more prominent companies will soon start curtailing their female employees’ health coverage for stated religious reasons. The war on women will open a new front. The potential for divisive court battles is astounding.
One other point needs to be made. "Religious principles" in the early part of the 21st century now seem to confine themselves to policing women and gays. More pointedly they seem to be about policing the sex lives of everyone except straight men.
It amazes me how, in their ideological purge of all viewpoints that don’t comport with their own, America’s right wing have grown increasingly politically tone deaf.
If I was a young American woman looking at this ruling I would be incensed. As a gay man I already realize it will be used soon to discriminate against the gay community.
Many people in this country have religious (and other) objections to being in the same room, never mind serving, gay people. This ruling gives them a fig leaf to discriminate.
“The court, I fear, has ventured into a minefield,” wrote Ginsburg on Monday.
That is true, but critics say it looks like the activist Roberts court will continue to plant mines, rather than defuse them.
The court has just given women (and gays) the best reason they’ve ever had to turn out by the score in November.