THE BLOG

Health, Sensuality and the Supreme Court's New Feudalism

07/23/2014 11:55 am ET | Updated Sep 22, 2014

Imagine a religious faith that required round-ups of the unlucky for human sacrifice -- to please the gods or to keep adherents in awe. Hardly preposterous -- think ancient Mayans, or hunter-gatherers in Borneo who collected heads well into the 20th century.

Were headhunters to try for a comeback at a strip mall near you, they'd of course be tried for murder, their faith notwithstanding. And nobody would claim that criminalizing faith-based killing unacceptably burdens the exercise of religion.

I'm being heavy-handed in making the point you probably see coming -- that, as Justice Ginsburg reminded us (quoting Zechariah Chafee) in rejecting the claim that a corporation's owners can impose their religious practices on their workers, "[y]our right to swing your arms ends just where the other man's nose begins."

The five U.S. Supreme Court justices who allowed company owners to do so in Burwell v. Hobby Lobby invoked a series of court decisions protecting people of faith against laws proscribing religious practices. But none of these rulings, under the First Amendment's "free exercise" clause and similar language in a 1993 federal statute, empowered people to impose their faith-based will upon others.

The Hobby Lobby majority took this leap, allowing the well-off to leverage corporate control into private command over women's sex lives. Score one for the New Feudalism -- wealth translates into power over others' intimate lives, without law as restraint.

Much has been made of the majority's sleight of hand -- transforming the fiction that corporations are people for purposes of legal accountability into the absurdist premise that they practice religion. But as even the Court's conservatives conjured up corporate piety, they conceded that "the purpose of this fiction is to provide protection for human beings ... including shareholders, officers, and employees."

So corporate personhood, applied to faith, needn't compel feudalism. It allows for the concerns of all of a firm's stakeholders, including employees. Here's where the Court's right wing acted radically, refusing to count employees as "human beings" in its calculus of corporate personhood and thus remaking this legal fiction into a tool for feudal control.

And here's where sex entered the picture, in the prudish context of American politics. "Your right to swing your arms" may stop "where the other man's nose begins," but the parts of a woman that provide her with sexual pleasure aren't so protected.

Progressives made the case for contraception coverage as a medical matter -- understandable since the Obama Administration mandated coverage under a provision of the Affordable Care Act requiring payment for preventive health services. And at the margins, birth control drugs and devices have clearly medical uses -- such as treating endometriosis and preventing risky pregnancies.

But most people, most of the time, use birth control because they want to have sex without making babies. We want sex that enriches relationships, or even sex that just feels good. This is as obvious as it is unmentionable -- the desire that dare not speak its name in politics.

Our casual clothing celebrates our eroticism. Our popular films depict it. Our pop stars perform it. But embarrassed liberals cast contraception as medical care, akin to drugs for diabetes. And in its Supreme Court briefs arguing that mandatory contraceptive coverage serves a "compelling" interest under the tendentiously-named "Religious Freedom Restoration Act" (RFRA), the Obama Administration spoke in euphemism, invoking "public health" and "gender equality," not sexual culmination.

The Court's conservatives seized on this sexual inhibition, refusing to find a "compelling" interest. Sexual communion didn't matter enough to stand in the way of the serpentine proposition that, as the majority put it, "it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another."

By this sinuous logic, it can be wrong to permit a Muslim to pray (say, by renting out room for worship) because her prayer speaks to God in a way a Christian finds objectionable. What keeps this syllogism from becoming sanction for faith-based oppression is that one person's "immoral act" can be another's cherished concern -- a protected religious, health or other practice -- the place "just where the other man's nose begins."

So the Court's key move was to dismiss women's sexual experience as unserious, indeed "immoral" if enabled by prevention of pregnancy. (The majority suggested that corporate owners' objections to contraception could be finessed by requiring insurers, not employers, to pay for it, but the Court dismissed this workaround days later as a likely breach of religious liberty.) Justice Ginsburg's demure dissent chided the majority for shortchanging women's health but stayed silent about the squelching of their sensual lives.

There's lots of evidence that sex is wonderful for women's and men's health -- that orgasms lower blood pressure, reduce cancer and heart disease risk, boost immunity, and, of course, raise mood. But sex is also just plain wonderful -- beautiful, spiritual, and, yes, hot -- even when we do it without making babies.

Hiding sensuality behind health, instead of celebrating it, devalues the erotic lives of women and men. More than that, our political embarrassment about sex has leveraged the power of the wealthy to control the intimate lives of others. By disregarding women (and the men to whom they make love) as sexual persons, the Supreme Court expanded the fiction of corporations as persons to give owners feudal power over their employees.

This new power extends beyond what people do with lovers and friends while nude. Nothing in the Hobby Lobby majority's opinion keeps employers from refusing to pay for medical care on religious grounds (imagine a fundamentalist faith that rejects high-tech lifesaving measures) -- or from "facilitating the commission of an immoral act" by hiring people who don't comply with religious prohibitions. Restraints on the New Feudalism will need to come from markets and politics -- from people who refuse to work for companies that practice it, buy their products, and back candidates likely to select judges who support it.

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I'm back, after a year-long stint as Co-Director of the Center for Transnational Legal Studies in London. I'll be writing regularly on subjects at the interface between law, culture, politics, and your health. Follow me on Twitter: @greggbloche