The Supreme Court, (Male) Whiteness, and Why Today’s Decision “Makes Sense”

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.

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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.)

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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.)

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Don’t miss part two: The Inherent Contradiction Between the “Constitution” and “Democracy,” More on the Hobby Lobby Decision



Categories: Thoughts and Perspectives

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11 replies

  1. I find today’s Supreme Court decision rather unfortunate and the rhetoric of corporation-as-person troubling. But I’d say we need to proceed with caution before painting the Supreme Court as a historically reactionary institution run by oligarchs that are always behind the times. As Alexander Hamilton argued around the time of Marbury v. Madison in 1803, “[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.” The court’s check on legislative authority is necessary and extremely important to the functioning of a good democracy. Somebody has to make a final decision on the constitutionality of the laws passed by Congress at the end of the day, and I’d much rather see the SC make that final decision than Congress or the Executive.

    Few of us who disagreed with today’s ruling were complaining about the Supreme Court’s oligarchic nature when they struck down sections of the Defense of Marriage Act last year, and few of us would complain about the Supreme Court’s oligarchy when interpreting a historical case like Brown v. Board of education that paved the way for expanded rights in this country.

    I agree that a nation’s laws are largely dictated by the zeitgeist of a given time and that they are quite subjective and always open for interpretation. We can only hope that the Supreme Court of a given time does its best to interpret the constitution in a way that best reflects the will of the people, but that’s not always happened, of course.

    Liked by 1 person

    • Thanks for your thoughts, Nick, especially your “naturalizing” voice. 🙂

      For sure the SCOTUS is important in terms of having another body that has important powers. It’s not just up to the Executive or the Legislature. I’m found myself more cynical lately, and in this cynical mindset, the way things are currently going, it seem all three branches of the government are just three different branches or three different manifestations of our current oligarchy – with the fourth branch being CEOs and firth being the media.

      Also, while of course everything is relative and subjective, I’d like to think–and still hope–that notions of justice and upholding “the Constitution” are more related to things that will make people more equal, rather than less – more able to pick their own religion, etc, than less.

      I’m idealist in that I wish everyone could and would see everything from a variety of perspectives-things could be so much simpler! 🙂

      And yes– the Court has made some wonderful decisions in favor of equality. With the Brown v Board example, it does seem, however, they have slowly completed overturned this case -both in terms of its immediate and “actual” text and its broader symbolism – currently Black Men are “enslaved” in the Criminal Justice System.

      Hopefully, rulings related to the DOMA will have longer and truer significance and meaning. Time will tell, I suppose.

      It seems there is a fuzzy boundary between upholding the Constitution and in representing the people – two charges that are at odds, perhaps?

      Enough thoughts for now. Sorry for the long rambling. Thanks again for your comment and for reading. Would love to know your other thoughts about all of this. 🙂 TTYL

      Like

  2. Andrew,

    What is a “white cis-man?”

    Is Clarence Thomas white?

    All of the jutices who voted for this decision were Catholics.

    Thsi really does demolish your assertion that the Supreme Court is a “WASP” institution does it not?

    Can you even name one WASP on the court today?

    There are none!

    As to the Hobby Lobby decision, it was a great one and it should indeed be celebrated.

    One last thing-if the SCOTUS is so “anti-woman” -despite the fact that there are three women in its ranks-what about the fact that one of the parties to this suit was a group of Catholic nuns? These are the Little Sisters of the Poor in suburban Chicago. How does this ruling keep these women down? Do your research please-what group of women in history is the most educated? The answer is Catholic nuns!

    Like

    • Hi Tim,

      Regarding: the meaning of “cis”….look it up :). Kidding. I’m working on a Glossary for my webpage. It’s located here: https://andrewpegoda.com/blog-glossary/ – Anyway, here’s a definition: “A cis-Male or cis-Woman entered the world with the announcement “it’s a boy” or “it’s a girl,” respectively, and throughout live basically identifies comfortably with the associated socially constructed categories of male and female, respectively. In other words, if you are not transgendered, you are cisgendered. Cis status does not relate to sexual orientation.”

      Clarence Thomas is all kinds of weird exceptions. He’s been described as having internalized White racism. He’s clearly an exception. But, nonetheless, from a variety of perspectives including Critical Race Theory, the US’s institutions and laws represent and were written by and for White people. Similarly, while many of the justices were Catholic, they work in and represent a Protestant worldview.

      There are lots and lots of articles about how the ruling keeps women down…no need to rehash those here.

      Thanks for reading and commenting.

      Like

  3. I wonder how the outcome of this case would have been different if, instead of Hobby Lobby trying to opt out of contraception, they were trying to force their non-Muslim female employees to wear headscarves while at work.

    In my view (and I used to be a lawyer), the Bill of Rights, including the First Amendment, protects only human beings. As non-humans, corporations are incapable of having Constitutional rights.

    Liked by 1 person

    • Exactly. We can just about guarantee that if the case had involved a non-contemporary Christian/European religion, it would have been very, very different.

      Please explain more about the Bill of Rights and it only protecting humans. How does this parallel with corporations being “persons”?

      Thanks for reading and commenting! 🙂

      Like

  4. To be fair, the three corporations did not request to be exempt from all forms of contraception. They will still offer 16 forms including female tubal ligation and most forms of the birth control pill. The morning after pill and IUD’s were the exemption requested.
    If you want to fight for women’s rights, you cannot do it at the expense of everyone’s right to religious freedom.
    I happen to be a woman. If I wanted to use these forms of birth control as an employee of Hobby Lobby, I still could. Their full-time minimum wage is $14 an hour, so I could afford it. But demanding that they directly fund what in their religious view is murder, is not a fight for rights and freedom; it is tyranny.
    If I disagree with their religious stance, I can coexist with them, boycott their stores, or choose to work elsewhere.
    I don’t want to live in a nation where I trample on others to demand my own rights. And in this case, access to these things: morning after pill and IUD’s, is still available and even without cost if I show up at a Planned Parenthood location.
    You should look at their request. It wasn’t to deny women the right to contraception, but rather to avoid being personally responsible for abortifacients. Each of these companies is family owned and not publicly traded. Just because a group of persons chooses to act in accordance, their individual rights are nullified?
    Muslims have already been exempted from the Affordable Health Care Act. Their religious freedom was written into the Act’s very pages. Because “insurance” is to them a form of gambling, they may choose exemption based on their religious code.

    Like

    • Thank you for your comment and for reading, Deborah. The more concerning aspect of this case is all of the consequences elsewhere it might/will likely have and is already having.

      Like

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  1. The Inherit Contradiction Between the “Constitution” and “Democracy,” More on the Hobby Lobby Decision « Andrew Joseph Pegoda, A.B.D.

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