Whilst we slept…
Posted July 8, 2014on:
Top of the Tuesday to you Widdershin friends. I hope your 4th was a good one. Since it seems my fingers have retaken residence over the computer home keys, I’m pleased to report my 4th was “digitally” unremarkable.
Last Friday’s post on the effects of the Hobby Lobby case by Caterwaulin’ Sam Alito and the Four Supremes was finished and posted about 5:00 p.m. on Thursday. As you will recall, Alito went out of his way to assuage any trepidation about the effects of the ruling and even Justice Kennedy harmonized this refrain, “the majority opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” We Widdershinville “why-askers” knew better.
Thursday evening, just as the Supremes left for summer vacay, was where the “rubbers” met the road on the whole religious liberty and contraceptive issue. A mere three days after issuing the decision in Burwell v. Hobby Lobby, with all its cooing and sweet nothings about it just being the outer most tip of religious liberty, the five conservative justices stuck it in with reckless abandon.
The down and dirty is this: In an unsigned emergency order granted Thursday evening, the court said the religious exemption “work around” it had just praised in the Hobby Lobby decision most likely would also be struck down. Accordingly, the ballyhooed “work around” would also be found an impermissible burden on the freedom of religious employers.
Whilst we slept, Monday’s permissible cure for “burdening” employers suddenly became the disease. In short, having explicitly promised that the Hobby Lobby decision would go no further than closely held corporations, the court went back on its word, then promptly skipped town for the summer.
The sneak attack of Thursday night last was the first skirmish in the great Womb Wars of 2014-15. On the one side you have five Catholic testosterone units with their “berobed” dangling junk versus the Uterus Caucus, the three female Justices. Here’s how it played out.
The five conservative Justices, constituting a majority, issued an emergency temporary injunction to Wheaton College. Wheaton is a small Illinois Christian college that has never had to comply with the contraceptive mandate of the ACA since there has always been an exemption and a “work around” for religious organizations.
To get the exemption they just have to file a short form, known as Form 700, that says, “We have a religious objection to providing contraception.” No one checks. No one is questioned. No one really cares because the cost of the contraceptives is borne through a government “work around” with the insurance companies.
That is, no one cares except Wheaton and several similarly situated plaintiffs. These religious organizations have filed appeals and are awaiting their day before the Supremes next term. Their beef: Someone signing the two page Form 700 triggers some third-party to provide the contraception, which in turn triggers women to have access to IUDs or morning-after pills, which according to their admittedly unscientific 16th Century principles, is akin to abortions, and thus violates their collective religious conscience.
Wheaton College and the other plaintiffs won’t abide being branded with the scarlet ACA even though their “religious burden” is merely signing a form. Their argument is the butterfly effect of contraception: Any time Wheaton flaps its religious-conscience wings, some woman somewhere gets an IUD and Wheaton’s religious liberties are violated.
This emergency injunction is in addition to the cases the court kicked back to various lower courts immediately after last Monday’s decision. In one case, the employer had objections to not just IUDs and the morning-after pill, but twenty other different types of contraception guaranteed by the ACA.
Another of these cases started out as a religious objection by the business owner, but morphed into a, “What gives anyone the right to tell me what I have to do? That’s my issue, that’s what I object to, and that’s the beginning and end of the story,” case. That libertarian screed is the stuff the Brothers Koch take Viagra and dream about at night.
Now back to Wheaton, and this is why I felt it necessary to update last Friday’s post: It is truly an extraordinary act for the Supreme Court to issue an emergency temporary injunction. It’s not unheard of, but it is about as rare as a civil pleasantry being uttered by Antonin Scalia.
What’s even more rare, even unheard of, is a seventeen page dissent to a four-paragraph order granting the injunction. The dissent, penned by Justice Sotomayor and joined by Justices Ginsberg and Kagan, was blistering. It centered on what we discussed last Friday, never before has the court allowed a party to determine, for itself, what constitutes a “substantial religious burden”. It is the equivalent of never questioning a three-year old who is allowed to only eat at McDonald’s and taking great pleasure when he smiles through his swollen scurvy-ridden gums.
In her dissent Sotomayor said, “Wheaton is mistaken — not as a matter of religious faith, in which it is undoubtedly sincere, but as a matter of law: Not every sincerely felt ‘burden’ is a ‘substantial’ one, and it is for courts, not litigants, to identify which are substantial.” She adopted an analogy from the Seventh Circuit:
Say a Quaker is called up for the draft and requests an exemption from service because of his religious beliefs. That’s fine, and RFRA may well dictate he can be exempted from service as a conscientious objector. But what if he then realizes some other person will be drafted to take his place? Can he object to his own exemption because that requires somebody else to take up arms?
If signing a short form is now a substantial religious burden as Wheaton College and others claim, there is little that isn’t a substantial burden under the Hobby Lobby decision. If that is the case, Sotomayor etched a nice little epitaph in her dissent, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”
Translated into the vernacular: No matter how sincere the sweet-nothings sound before you are right and royally violated, those sweet assurances never turn into calls the next day, but just the same, you remain right and royally screwed.
This is your intrepid contraceptive correspondent signing off with, “Have a nice day and this is an open thread.”
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