The Supreme Court’s Twisted Definition of “Religious Freedom” by Norman Markowitz
In the 1930s, Franklin Roosevelt denounced the “nine old men” of the Supreme Court who by a 6-3 majority were holding the labor movement, the government, and working people hostage by declaring legislation regulating business and protecting people unconstitutional.
That was a little unfair, because three of the “nine old men” were progressives. A few days ago, five reactionary old men made a bonfire of the bill of rights by declaring that employers can deny health insurance coverage for specific birth control methods and materials if they specifically conflict with the employers’ religious beliefs. The cases, Burwell v. Holly Lobby Stores and Conestoga Wood Specialities v. Burwell were companies led by fundamentalist Christians and Mennonites respectively.
Let me take a breath and try to explain the decision, a five to four decision with the three women on the court joining one man in the minority and Justice Ruth Ginsburg writing a dissent in defense of not only the Constitution by post 17th century definitions v of logic and reason. As Justice Ginsburg said clearly and succinctly, “the court forgets that religious organizations exist to serve a community of believers. For profit corporations do not fill that bill.” Apparently the present Court majority believes that all organizations, religious and secular exist to serve for profit corporations
First and this is very important. The majority decision applied the 1993 Religious Freedom Act, which limited the power of government to restrict the religious freedom of “persons” without a compelling public interest to employers aka businesses/corporations.
This was the first time such a judgment had been made. It comes four years after the Citizens United Decision applied the “corporate personhood doctrine” developed by Supreme Court Justice Stephen Field in the 1870 to protect corporations from government regulation and established as precedent through fraud to the question of campaign financing, defining any restriction or corporate political spending as a limitation on the fourteenth and first amendment rights of corporations as “persons.”
Now, the Obama administration’s attempt to compel employers under the Affordable Care Act to provide employees with insurance coverage for certain forms of contraception (including the very widely used IUD) is knocked down as a violation by corporate “religiousfreedom,” since it “violates” the religious beliefs of the employers(the beliefs of the employees having of course no merit)
Justice Ginsburg in her dissent stated rightly that employers who opposed surgery or blood transfusions on religious grounds (and there are established religious groups which do hold those positions) could theoretically deny insurance coverage to their employees.
Actually, although the dissenting Justices didn’t think of this, given capitalists very well known history of using every loophole they can to evade regulation, taxation, and collective bargaining contracts, it is possible that many employers will restrict all kinds of health coverage for employees under the act, claiming that the coverage violates their “religious beliefs.” It is also possible(and this is a worst case scenario) that employers will go back to pre civil rights legislation policy of refusing to hire workers of specific religious affiliation, claiming such hiring violates their religious beliefs
What is to be done? First, repeal through national legislation the “corporate personhood” doctrine in all of its manifestations. It has nothing to do with the Constitution, nothing to do with the intent of the framers of the fourteenth amendment, and derives from the “precedent” of an 1886 Supreme Court case that really was no precedent, a fraud built on a fraud, which in any case had nothing at the time to do with either campaign financing or the relief beliefs of employers(for the full story, see my article, Norman Markowitz, “On the Absurd and Sinister History of “Corporate Personhood” Political Affairs, April 24,2012, online) Second, make the restoration of a progressive judiciary, one that moves away from the subjective self serving use of “original intent” and “precedent” and looks at the social economic context that are the material foundation of legal cases, looking at both the law and the facts. The usual way to do that is to appoint at the federal level and appoint and elect at all levels individuals who represent the peoples interest to the judiciary, labor lawyers, civil rights and civil liberties lawyers, people who have extensive experience in fighting against what the Roberts Court today represents and what the rightwing Federalist Society(of which Roberts was a member) which has served as an employment agency for rightwing lawyers at the federal and state level since the Reagan years represents. In that sense, it would be of value to either greatly strengthen the National Lawyers Guild, which sought and to some extent did play the role in the New Deal era that the Federalist Society plays today, until it faced postwar persecution by HUAC, the McCarthyites and their bipartisan allies as “the legal arm of the Communist Party” or, if that is not feasible, create a new national lawyers organization which would become a center for advancing both progressive jurisprudence and also bringing peoples attorneys into the federal, state and local judiciary.
Finally, there is the question of judicial review itself, which was not in the Constitution as such. The Supreme Court established this precedent cleverly in Marberry v. Madison, when a Federalist dominated Court upheld the power of its enemy, the Jefferson administration, to dismiss a Federalist appointee, this establishing the right of the Supreme Court to review such decisions. A few days ago, the Supreme Court(unanimously in this case) ruled to strike down President Obama’s “recess appointments” to the NLRB in response to a Pepsi Bottler who claimed that the Obama appointments cost him a case in a labor dispute. It would be a kind of poetic justice if this decision led to action that radicals have intermittently called for since the late 19th century, the elimination or at least significant restriction of the power of judicial review, a power that has made the unelected and life appointed Supreme Court the most powerful court in the world
