Wednesday, September 3, 2014
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The high court's high-handedness

Would we even be having this debate if some company had a religious objection to Viagra — or vasectomies?


Posted on July 13, 2014 at 3:25 p.m.

It is a case of Supreme hypocrisy.

The adjective refers to that nine-person tribunal at the top of the American legal system, the noun to its latest act of judicial malpractice. Meaning not the notorious Hobby Lobby decision handed down at the end of June, but a less-noticed ruling a few days later.

We have to revisit the former to provide context for the latter. On June 30, the court ruled that a "closely held" corporation may deny employees health insurance covering any contraceptive method that conflicts with the company's religious beliefs. Writing for the majority, Justice Samuel Alito faulted the government for failing, under the Affordable Care Act, to choose the "least restrictive" means of ensuring women access to all FDA-approved methods of birth control. He pointed out that the ACA already makes an exemption for nonprofit groups with religious objections; simply fill out a form certifying those objections and they are relieved from having to provide the disputed contraceptives.

Alito saw this as a win-win. Employees get the birth control they want — they pay directly to the insurance company — but the government does not "impinge" on the organization's religious beliefs.

Three days later, the court issued an injunction freeing a Christian school — Wheaton College in Illinois — from having to fill out the certification form. The school had argued that simply doing the paperwork — the form asks only for name, contact information, signature and date — infringed upon its religious liberty because it would trigger the employee's ability to get the disputed contraception. So the same form that the court held to be a reasonable compromise on Monday was judged an unreasonable burden on Thursday. Or as Justice Sonia Sotomayor put it in a withering dissent, "Those who are bound by our decisions usually believe they can take us at our word. Not so today."

Indeed, the malleability of the court's logic suggests these rulings are based less in law than in the personal beliefs of the men on the tribunal. One gets the sense they chose the desired result first, then backfilled whatever "reasoning" would get them there.

Which is not just Supreme hypocrisy, but also Supreme faithlessness. And, yes, Supreme sexism.

I once saw a protest sign to the effect that if men gave birth, contraception would be bacon flavored and dispensed from vending machines. Can anyone argue the truth in that? Would we even be having this debate if some company had a religious objection to Viagra — or vasectomies?

And how far down the line must a company's religious scruples be honored anyway? If it is too much to ask Wheaton College to fill out a form because an employee will be "triggered" to buy contraception on her own, does the school also have a right to scrutinize and approve other purchases made with the salary she earns from them? If she buys whiskey or pornography with "their" money, does the school have a right to object?

Not to mention the frightening precedent the court is setting in the name of religious liberty. It makes faith a potential get-out-of-jail-free card, exempting the holder from any law he finds onerous. Given that Mormons once embraced a theology of racism and evangelical Christians still deny basic freedoms to gay people, the danger of this is obvious.

In its rush to confer personhood on organizations and constrain women's choices, the court steers us toward a day in which corporate rights would trump human rights and you could no longer take for granted that you would be served by a given business without first checking to make sure you didn't offend the owner's religious sensibilities. It's hard to imagine what that world would be like.

Pretty soon, we may not have to.

(Leonard Pitts is a columnist for The Miami Herald, 1 Herald Plaza, Miami, Fla., 33132. Readers may contact him via e-mail at lpitts@miamiherald.com.)




 In this image from video posted on Facebook, courtesy of the George W. Bush Presidential Center, former President George W. Bush participates in the ice bucket challenge with the help of his wife, Laura Bush, in Kennebunkport, Maine. The challenge has caught on with notable figures participating in the campaign to raise money for the fight against ALS, or Lou Gehrig's disease.

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 President Barack Obama greets audience members after he spoke at Laborfest 2014 at Henry Maier Festival ParkMilwaukee, Wis., on Labor Day, Monday, Sept. 1, 2014.

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 This undated image posted on Wednesday, Aug. 27, 2014, by the Raqqa Media Center of the Islamic State group, a Syrian opposition group, which has been verified and is consistent with other AP reporting, shows a fighter from the Islamic State group, armed with a knife and an automatic weapon, next to captured Syrian army soldiers and officers, following the battle for the Tabqa air base, in Raqqa, Syria. A U.N. commission accused the extremist Islamic State organization of committing crimes against humanity as pictures emerged of the extremists' bloody takeover of the air base.

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