As we have all been hearing all day, Burwell v. Hobby Lobby exempts Hobby Lobby from the Affordable Health Care Act’s mandate to provide contraceptives to women on the grounds that it violates this person’s (does Hobby Lobby prefer male, female, or another set of pronouns?) religious freedom. Some rough thoughts are below.
While terribly disappointing, today’s decision makes sense in the way that history isn’t supposed to make sense, and really, it should be of little surprise. One could say, the Supreme Court functions as the United States’s ultimate oligarchy. Outside of revolution, they pretty much have the final say and have the ultimate job of “upholding the Constitution.”
Considering rich White cis-Men wrote the Constitution for rich White cis-Men, in some ways, the Supreme Court actually did its job today and continued down its long trajectory of favoring a version of the rich White cis-Male Protestant worldview. This is the same institution that said those with Black skin could not be citizens, that sanctioned and perpetuated “separate but equal” mores, and that now allows ultra-rich White cis-Men to buy elections, for example. Of course there have been some wonderful and important rulings, as in Brown v. Board, but these have lacked enforcement and have been slowly overruled via subsequent rulings or de facto practices.
Another way to look at today’s ruling is to look at how much the Supreme Court and the law function as mirrors of society’s—particularly White cis-Men’s—hopes and fears at a given time. The law, like everything else, is relative and a social construction. In general, any given ruling, much more than being about true justice, is about what society demands at a given time, about the issues pressing a society at a given time. As much as we would like and hope, the Supreme Court has no interest in actually upholding the Constitution in any of its forms.
Consider Plessy v. Ferguson (1896): The powers at be needed a way to fully undo the promise once provided to African Americans with Emancipation and Reconstruction and needed a way to fully separate poor Whites from Blacks. The ruling of “separate but equal” accomplished just this.
Consider Lochner v. New York (1905): The United States was in the middle of its biggest wave of industrializing and trying to figure out how to deal with it. In this case, the SCOTUS, said that it was legal to limit the hours Women worked a day because their health was a public concern because they needed to have children. They limited their day to 10 hours! In a prior ruling, they said it was illegal to limit the number of hours corporations could make a Man work in a given day.
Today, as society is truly becoming more diverse and multicultural, the Supreme Court (and Republican-Tea Party politicians, as well as major corporations) has issued numerous rulings which reflect the fear of rich White cis-Men losing their power. Rich White cis-Men can now buy elections. Poor and non-White individuals are being disenfranchised in growing numbers. The power of unions continues to be curtailed, too.
That today—in an era of an on-going War On Women, on their humanity, their education, their voice, their control of their own life and body—we have a ruling that limits this, makes sense. That “religious freedoms” were used to justify it, makes even more sense.
And that Men retained the right to control their humanity, their education, their voice, their control of their own life and body also makes sense. (Hobby Lobby has no problem covering Vasectomies and Viagra.)
Today’s ruling should not be celebrated.
We have all been reminded that (White) corporations have more humanity than Women.
We have all been reminded that “religious freedom” is very subjective and does not apply equally to all people.
We have all been reminded that politicians and judges are more knowledgeable about medicine than medical doctors.
We have all been reminded that far too many seemingly believe the Bible was written in English with present-day knowledge and problems in mind.
We should also all be reminded that one case has the power to radically, radically alter the visual and geopolitical/cultural everyday landscape.
Ultimately, unless dramatic change happens (and I’m hopeful that it might), we need to anticipate what new forms de jure discrimination will take in the future as hopes, fears, needs, and expectations shift.
And, I’ll leave you with this slide show of some of the comments made on Twitter today. (Email subscribers might need to visit the actual webpage to see these.)
Don’t miss part two: The Inherent Contradiction Between the “Constitution” and “Democracy,” More on the Hobby Lobby Decision
Dr. Andrew Joseph Pegoda 