Cross-posted from Empire Burlesque
On Thursday, the Supreme Court ruled that a sectarian college in Illinois, Wheaton College, did not have to fill in a federal form to claim its exemption from regulations providing contraception coverage in its employee insurance programs.
Note that the issue was not a question of whether the college was exempt from the regulation, as in the Hobby Lobby case. As a sectarian institution, it was already exempt. What the college objected to was simply sending a form to the government regarding the exemption. This, they said, would involve them in "a grave moral evil," because notifying the government would make the college complicit in some other organization providing the contraception coverage. (The law stipulates that if a sectarian employer does not provide the coverage, the government will ensure that it is provided by someone else, usually the insurance company involved or some other third-party administrator of the program.)
In other words, according to Justice Samuel Alito and his fellow conservatives in the majority, the Hobby Lobby case was a "win-win" all around; sectarian business owners did not have to dirty themselves with concerns about their female employees' reproductive health, while the government was free to ensure that contraception coverage was provided from another source.
But just four days later, the conservative majority has reversed course, and finds that the alternative they lauded on Monday is no longer good enough. They agree with Wheaton College that the alternative itself violates religious liberty and can be ignored. Sectarian organizations can merely send a letter to the government opting out, without filling out the form -- because the form would notify the insurance program's third-party administrator that the female employee was no longer covered for contraception.
Coupled with the Hobby Lobby case, the Wheaton decision means that all sectarian-ruled organizations, whether they are commercial businesses or non-profits, can not only opt out of providing contraceptive coverage to their female employees, they can also refuse to submit the form that would expedite the provision of such coverage from elsewhere, in accordance with the law. The result, as Sotomayor notes, will be administrative chaos:
"Is HHS to undertake the daunting -- if not impossible -- task of creating a database that tracks every employer's insurer or third party administrator nationwide? ... In addition, because Wheaton is materially indistinguishable from other nonprofits that object to the Government's accommodation, the issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy. The Court has no reason to think that the administrative scheme it foists on the Government today is workable or effective on a national scale. The Court's actions in this case create unnecessary costs and layers of bureaucracy."
But of course, that is very much the point of the decision -- which the conservative majority considered so overwhelmingly important that they invoked the rarely-used All Writs Act, normally used in cases where it is "indisputably clear" that a law will substantially harm the appellant in some way, in order to make Thursday's ruling, thus by-passing the lower courts, where the legal arguments of this not-at-all-clear case could be thrashed out. The point is to gut the contraception coverage provision in any way possible. Immediately after the Hobby Lobby ruling, the Court majority made it clear that their ruling applied not only to so-called abortifacients, such as the morning-after pill -- which were the ostensible reason for the case -- but to all contraception. And now they have demolished the alternative to the system -- the very alternative, as noted above, that they cited on Monday as a linchpin of their decision.
The rulings by the conservative majority on the Court are part of a relentless, decades-long effort to reassert control of women's sexuality. In this, America's super-patriotic, politicized right-wing Christians share a common cause with the Islamic sectarians they hate so much (and are so scared of). Women's sexuality is apparently the most volatile, dangerous force in the world -- much, much more dangerous than, say, nuclear war or the heat-death of the planet, which concern them not at all. The amount of time, energy, money -- and frenzy -- spent on repressing and controlling women's sexuality is truly extraordinary. Or rather, it is, tragically, all too ordinary, part of an effort that has been going on since homo sapiens first emerged.
It is also part of a larger agenda by our homegrown, well-heeled religious extremists to supplant secular government with sectarian rule. Their ludicrous public panic about the danger of "Sharia Law" being imposed on the country is a hysterical projection of their own desires -- and their own designs. A growing sectarian hardcore believes that secular government has no legitimacy whatsoever; a Bible-based "Dominion" is the only proper form of government. Wheaton College's objections to the government form likely has as much to do with this larger agenda as it does with the sectarian extremists' deep-seated, fear-ridden hatred of women.
I have seen this belief and this agenda in action. It was almost 30 years ago, when the sectarian extremism that is now rampant across the land, controlling one major political party, parts of the military and bankrolled with billions of dollars, was still, for most people, a distant sideshow confined to rural backwaters. I was working at a newspaper in one of those "backwaters," a rural country in the foothills of the Smoky Mountains. A local fundamentalist sect was growing toward "mega-church" status. It had its own television facilities -- very much a rarity in those days. It had a huge new church complex. Then the church's pastor decided he wanted to have a school. He added on to part of the already existing complex to make room for a finely-appointed private Christian school. The state had no objection, of course. All they wanted was for him to allow the school building certified as safe, according to fire codes and structural regulations. It was all very routine; and had of course been done for the television studio and other structures in the complex.
Now the pastor in our county was taking a similar stand. He could not allow the State of Tennessee to issue a permit certifying that his school building was safe because this would be an unconscionable encroachment of secular government on religious liberty. Even though the state wasn't trying to tell him what to teach in the school. (Which would no doubt include anti-imagination exercises in English class.) It wasn't trying to dictate his beliefs or encroach on them in any way. There wasn't even any real question that the building was structurally safe and sound. He simply refused to have anything to do with the state.
The case came to court. The local sectarian extremists were in a state of high excitement. (The rest of the populace -- almost entirely Bible-believing conservative Christians -- thought the pastor's stance was ludicrous.) I remember sitting in the courtroom right behind the pastor's college-student son and his friends. (The son was attending a state university; perhaps he planned to refuse to accept his diploma upon graduation.) The young man was particularly hyped up, squirming in his chair, combative, ready for the fight. Suddenly he smacked his fist into his palm and said, seething, "Man, wouldn't it be great if the Lord struck down this courtroom right now!" His friends all agreed.
The pastor took the stand and under questioning from his lawyer delivered a long oration on religious liberty and the exaltation of sectarian belief over secular government. He could not accept -- would not accept -- that the state had the authority to regulate or license anything associated with his religious activities. There were cheers from the college contingent.
Then the state's attorney got up. He asked the pastor if he had a driver's license. The preacher said, yes, he did. He asked him to show the license to the court. The preacher did so. The attorney then asked what entity issued the license. The State of Tennessee, was the answer. Finally came this question: Do you ever use your car on church business? Yes, of course, said the pastor.