More Hobby Lobby Fallout

[Content Note: War on agency; Christian Supremacy; misogyny.]

Last week, the US Supreme Court made its supremely garbage decision in the Hobby Lobby "religious freedom" case, followed immediately by religious organizations trying to exploit the ruling by asking for an exemption from a forthcoming executive order that would prohibit federal contractors from discriminating against LGBT people, as well as a SCOTUS clarification that the ruling applies to companies which oppose all contraception, not just the forms covered by the Hobby Lobby case.

Then, on Thursday evening: The Supreme Court majority issued an emergency stay on behalf of Wheaton College, an evangelical institution in Illinois, which objects to the accommodation the Department of Health and Human Services offered religious non-profits which don't want to pay for any contraception coverage at all. That accommodation would require Wheaton College and other institutions to fill out a form certifying the objection, and then the insurer would provide the coverage directly, without the objecting organization having to pay for contraception.

Wheaton College claims even that is a violation of their religious liberties. That is, they don't want their female (and other) employees to have access to contraception at all, in any way affiliated with their employment.

So the Court issued an injunction while that issue is appealed. So much for the limited nature of the Hobby Lobby ruling.

The three female justices—Justice Sonia Sotomayor, Justice Ruth Bader Ginsburg, and Justice Elena Kagan—issued a scathing dissent in response to the stay, authored by Sotomayor and signed by Ginsburg and Kagan. (Justice Stephen Breyer, who dissented with them in Hobby Lobby, did not sign.)

The fierce disagreements dividing the Supreme Court over this week's Hobby Lobby decision were laid bare Thursday in a searing dissent [authored by] Justice Sonia Sotomayor, who said the justices' decision in a separate contraceptive case "undermines confidence in this institution." The dissent was signed by all three female justices.

"Those who are bound by our decisions usually believe they can take us at our word," wrote Sotomayor. "Not so today."

The dissent was in an order to grant an emergency request from Wheaton College, an evangelical college in Illinois, on a temporary basis until its appeal goes forward. At issue is the "accommodation" the Obama administration worked out for religiously-identified non-profits: Sign a form certifying your objection, and the insurer will provide the coverage directly, without the objecting organization having to pay. As of now, 122 non-profits have sued, claiming that signing the opt-out form for someone to get contraception violates their religious liberty. (An attorney for the plaintiffs has repeatedly referred to it as a "permission slip for abortion," even though it does not actually cover abortion.)

In fact, that accommodation was one of the reasons Justice Samuel Alito cited to justify his Hobby Lobby decision – words Sotomayor threw back at him in the dissent. Under the Religious Freedom Restoration Act, the government has to show it has pursued the least restrictive means to accomplish its goal. Alito claimed that because the nonprofit accommodation exists, that means the government has other ways to get women access to contraception that respects religious liberty. Yet only a few days later, he ruled that the nonprofit accommodation – again, signing a form – is also a violation of religious liberty.

"Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs," Sotomayor wrote. "But thinking one's religious beliefs are substantially burdened … does not make it so." She added, "Not every sincerely felt 'burden' is a 'substantial' one, and it is for courts, not litigants, to identify which are."

...Sotomayor also pointed out that the facts of the case hardly met the Court's high standard for such an emergency injunction.

And yet here we are.

It is extraordinary that Sotomayor wrote, quite rightly and so bluntly, that this decision "undermines confidence in this institution." I wish fervently that it would matter. But it won't.

Nothing ever even comes close to threatening the lifetime appointment of an individual justice, no less threatening the national lifetime appointment of the court itself, no matter how evidently in desperate need of reexamination the increasingly corrupt institution may be.