As women's and reproductive rights advocates bemoan the supreme court's decision in the Burwell v. Hobby Lobby Stores, Inc. case, there is an aspect of this decision that is being missed by those who are most critical of the decision: the decision is more a statement on worker's rights, with the implications for women's and men's "reproductive rights" receiving more attention than the intent of the parties bringing suit. The decision represents the obvious pro-corporate beliefs of the five male supreme court justices that rendered the majority decision. It is centrally about disempowering workers in the workplace, with the implications for reproductive and women's rights being areas only most immediately impacted by the decision.
It is important to say, up front, that there is no diminishing of the impact of women's issues and reproductive rights intended here. The impacts of this decision on those issues are devastating. This is simply an effort to frame the decision in the largest context of relevance. And, given the conservative majority's record on protecting workers' rights, it is extremely important that the broader implications are not misunderstood, or ignored.
The majority relied on an interpretation of the Religious Freedom Reformation Act, of 1993, which supposedly prevents discrimination based on a person's attempt to exercise religious freedom. There is no intent to assert legal expertise here, but, there is clearly something that Justice Alito's majority decision left out. In courts at all levels, the beliefs of atheists are considered to be a de facto set of religious beliefs. Therefore, in placing the beliefs of "the owners of three closely held for-profit corporations," (Alito, page 2 of majority decision), which Hobby Lobby is asserted to be one of, before those of atheistic or people of differing beliefs, they have placed the beliefs of the employees in a position subordinate to that the corporation, without any legal justification.
It does not require a Juris Doctor to understand that religious beliefs are all supposed to be weighed equally in legal adjudication. It also does not require any special legal education to make the determination that nothing in the text of Justice Alito's majority decision addresses this fact fairly, or even directly. The majority has differentially applied the 1993 law in favor of the corporation in a manner that completely disregards the idea that the employees may have religious beliefs of their own that deserve protection under the same 1993 law. The exemption of religious organizations from the requirements of the Affordable Care Act, is ideologically different from exempting a publicly traded, or privately held corporation from the fiduciary responsibilities that both types of corporations are normally required to uphold by law.
It could certainly be asserted, with great passion and a confluence of rationality and legal precedent, that is there is little about "religious freedom" at question in this case. If Hobby Lobby routinely does business with corporations and nations that support the reproductive options required by the ACA, then how is it that providing those same options to employees harms the owners? If selling to customers that may very well believe that it is right and good to murder people in public is not an issue, then how is it possible that employing them is more harmful?
Again, there is nothing in the Religious Freedom Reformation Act that specifically suggests that, corporations that are prevented from discriminating on the basis of race, national origin, gender, age, or religion, would allow them to discriminate uniquely on individuals whose religious beliefs included walking around nude at the North Pole on vacation with a lit candle in their rear end. The fact that Hobby Lobby accepts money from people of completely differing religious beliefs would tend to negate the idea that they should be allowed to restrict expending money on people of differing religious beliefs. The idea that reproductive choice is an element of such beliefs is more or less central to the core of this case, as asserted by the plantiffs. This is logical no matter what the conservative majority of the supreme court might assert.
For those of us who have worked under unfair and exploitive employers, watching this case from the sidelines, there is a central theme that stands out for us, that may not stand out for everyone: this decision allows employers more control over the lives of their workers. In an environment that already affords employers overwhelming control over the lives of employees, this appears to be just another gift to those that want to control them even further. It is another way for employers to hone their work force to their desires. Eliminating benefits is one of the big points of advocacy for corporate lobbyists, and this ruling further eliminates a set of benefits available to some corporate employees, but not others. While ruling after ruling, law after misguided law, chips away at benefits to workers, it appears that this is just another device to further limit the kinds of benefits and assurances of equality of compensation that employers must provide to employees.
If there a "Randian Liberatarian" agenda in play among a number of power political forces, (and not asserting any type of conspiracy, just common action via mutually recognized interests), then those that advance this agenda have been handed another major tool in establishing this agenda as a legal imperative. If employers can tell employees up front that they do not offer benefit support for reproductive choice, this is another disincentive to those that do provide such benefits to their employees. It is another reason for them to lobby for this misguided ideal to be expanded to simple ideological objections to reproductive choice as well. If the ideology is enhanced profits at the expense of worker freedoms, then why not consider this to be a "fundamental right" as well?
Is this a far-fetched concern? Well, as many might remember, a 2004 supreme court decision, Kelo vs. New London, expanded the right of various levels of government to exert the principle of eminent domain over privately held properties for transfer to other private owners strictly for economic reasons. While there is room to argue over the constraints that may or may not exist under the ruling, it is unquestionably clear that this ruling was a nod to the expansion of specialized business interests over the rights of individuals. The same logic that facilitated the expansion of eminent domain may yet be applied to the provision of benefits and other compensations to employees.
There is already weak protections on compensation for workers, and "wage theft" is a severe problem. This ruling seems to just codify the idea that withholding forms of compensations from workers is acceptable in private enterprise, by actually legalizing a form of compensation discrimination seemingly based on the religious beliefs of the employer. This is a trend that appears to be ongoing, and some may see this ruling as making the "slope even more slippery."
Ultimately, the impact of the ruling on employee rights and reproductive freedoms is yet to be fully assessed. Much will depend on how widely this ruling is used as a precedent to expand employers' "rights" to deny forms of compensation to employees based on narrow criteria. If the history of the supreme court since the departure of revered Justice Thurgood Marshall, who was seen by many as a staunch defender of the rights of the masses, is any example, then employees are likely in for a rough ride.