U.S. Supreme Court

There are legal decisions of the U.S. Supreme Court that have big political dimensions and then there are just big political decisions. The narrow decision allowing certain corporations to deny birth-control coverage for their women employees as required by federal law is one of the latter.

You can find a few other instances where the court ignored its constitutional precedents and issued an order that gave one of the political parties an election-year boost. The big one was Bush v. Gore in 2000 when the Republican majority stopped a vote recount in Florida and ordered that George W. Bush be certified as president with no better constitutional grounding than that the country just needed to move on rather than see what the recount showed.


In the Hobby Lobby case, the justices ruled 5-4, as everyone knew they would, that the Affordable Care Act, Obamacare, could not require closely held corporations to insure contraceptive medicine for their female workers if the company’s religious beliefs were that those forms of birth control were sinful. The law requires employer-based insurance to cover preventive care, including contraceptive medicine, without cost to the patient.

The decision was exactly the opposite of what the Republican majority had held some years earlier for individuals. The justices had ruled that individuals did not enjoy the religious protection that they handed to corporations on Monday. A person, the court said then, could not use his or her religious beliefs to get around a law that was generally applicable to people.


What the court set out to do in the Hobby Lobby case, and did, was to strike a blow against Obamacare and the president, the Republicans’ big issues for the 2014 elections. The justices had failed the party two years ago when the chief justice caved on them and they could not strike down the whole insurance reform. It allowed the president to get re-elected and more than 8 million Americans to get insurance for the first time.

Chastened, the chief was back in the fold for this one.


The whole political apparatus was ready for the anticipated decision. Instantly, the House speaker, John Boehner, cheered the court for handing a defeat to the president, who he said had “repeatedly crossed constitutional lines,” although the court did not exactly say the president or the health care law had crossed constitutional lines but an act of Congress.

All five Republicans in the Arkansas delegation, like those from sea to shining sea, had statements ready praising the court for delivering a blow against Obama and the health care law. Attack ads against Democrats for being associated with a president who is against religious freedom will hit the tube in days.

Sen. Mark Pryor, bashed by his opponent, Rep. Tom Cotton, for joining with the hated Obama in this infamous deed against the devout, issued his own statement attacking Cotton for wanting to throw 220,000 Arkansans off the insurance rolls and for wanting women to pay more for their insurance than men.

The decision carries a payload for Democrats, too, potentially an even better one. It is that the decision reflects the Republican Party’s animus against women. When polls asked people if employers who had insurance plans for their workers should be able to deny birth-control coverage for women based on the employer’s, not the workers’, religious beliefs, they overwhelmingly said no. Among women, it was even more lopsided.


The opinions in the contraception case will pose a dilemma for scholars tracing the development of First Amendment rights. How do you make sense of the conservative majority’s conflicting opinions on the religion clause?

Let’s go back to 1989 and the court’s opinions in Employment Division v. Smith, in which two Native Americans in Oregon who were drug counselors were fired for ingesting peyote, a cactus used by Indians and some other peoples around the world for medicinal and religious purposes because its hallucinogenic qualities promote meditation. They had consumed it as part of religious ceremonies of the Native American Church and claimed that Oregon laws making it an illegal drug violated their church’s doctrine.

That makes no difference, the Supreme Court’s 6-3 majority said. Justice Antonin Scalia wrote that an individual’s religious beliefs could not excuse him from complying with an otherwise valid law. Allowing people to excuse themselves from laws that somehow affect some religious belief, he wrote, “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind,” and he mentioned compulsory military service, payment of taxes, vaccinations and child neglect.

But Oregon’s law was not an important Democratic law, like Obamacare. Scalia and his Republican colleagues went the other way on this one by standing behind an act passed in the first days of the Clinton administration that was a thinly veiled effort to overrule Scalia’s holding in the peyote case, which Congress of course cannot do. The Religious Freedom Restoration Act said a government could deny a person’s religious exceptions to a law only by meeting a stern test. So Scalia and his colleagues said the Religious Freedom Restoration Act was a perfectly acceptable statute and that exemption from a law should be given to a corporation if so few people owned it that you could discern a common religious belief and it applied that belief consistently.

Hobby Lobby’s owners, one magazine reported, profit from investing in businesses that reap huge profits from expensive contraceptives. But what higher religion is there than profits?