THE BLOG

Ayatollah Alito

07/03/2014 09:23 pm ET | Updated Sep 02, 2014

Ayotallah Ali Hosseini Khamenei, say hello to your new comrade, Ayotallah Samuel Alito. Supreme Leader meet Supreme Court Justice.

And, no, regrettably, this is not hyperbole.

With his pronouncement in Burwell v. Hobby Lobby, Supreme Court Justice Alito signaled to the world that America has joined the world's theocracies.

This extraordinary nation, borne of the Enlightenment 238 years ago to the day, will now cloak power, policy and even what qualifies as facts in the vestments of religious belief.

Because, as Justice Ginsburg noted in her dissent (p. 65ff), religious beliefs cannot be questioned either for substance or sincerity. If one, for example, asserts scientifically that IUDs prevent implantation of fertilized embryos, the scientific response would be to explain that their mechanism of action is to prevent fertilization (the sperm cannot 'swim in a dry lake' to reach the ovum to fertilize it).

But, if one makes the same claim religiously, then that is the end of it, even if it determines the application of public policy. The Court cannot question the assertion nor whether you believe it, and now, post Hobby Lobby, if you are empowered to act upon it, your religious beliefs determines secular policy for other people.

The Koch Boys, for example, can now claim a religious belief that carbon dioxide is not a heat-trapping gas. So, they can now violate EPA regulations so that their "religious freedom" is not burdened. Post Hobby Lobby, the Ayatollah Alito may declare that, e.g., a carbon tax is a "less restrictive" way to "impose" a science-driven public policy upon the Kochs' religious beliefs about carbon. Will Congress, under the influence of the Koch Boys, pass such a tax? Of course not. Game... set... match... and planet.

God probably reminded Art Pope this morning that the minimum wage is a sin. Is there a "less restrictive" way to establish adequate wages for his employees, so we do not "burden" the poor sot's religion? The Ayatollah Alito could choose between the Earned Income Tax Credit and workers' "freedom" to bargain in the free market to establish wages. (I kid you not... listen to JFK's rally for Medicare, especially 14:36-16:50.)

As previously described, right-wing politics is not just pro-business, it is itself a big business. The more vitriol, the more money the right-wing groups can raise, and it is protected as political speech. By contrast, when a commercial enterprise raises money from investors, or makes claims about its products, it is subject to fines and/or imprisonment for false and misleading claims.

But, that is just speech. Now, post Hobby Lobby, a simple claim of religious belief, blessed by Alito, can be used to thwart public policy so long as there is any "less restrictive alternative," real or imagined, that can be referenced. It is a full-employment ruling for the Right Wing Belief Tanks, such as Heritage, to concoct the alternatives.

What does this mean for America? Whatever semblance of democratic government has survived its purchase as a result of the Citizens United ruling is now snuffed out by the counter-majoritarian (see, e.g., Bickel, The Least Dangerous Branch) Supreme Court. Does it, should it, matter if the "less restrictive alternative" is even viable? Who decides these matter of public policy? Our new Supreme Leaders.

It means that "closely-held" corporations will have competitive advantages against all the others as they will not have to comply with federal or state law because they are now deemed to be capable of holding religious beliefs about public policy and, if those beliefs conflict with public policy, the beliefs win.

But, it may also have consequences Alito did not consider. For example, if religious beliefs can now stay the application of public policy, will they remain forever free from scrutiny? This is quite different from advocating a public policy position grounded in religious belief. Hobby Lobby allows corporations to thwart enforcement of public policy based upon unchallengeable religious belief.

Moreover, since corporations can now, apparently, hold religious beliefs, as creations of the State, does their very existence not now violate the First Amendment's Establishment clause? The State, after all, provides corporations with special benefits such as limitations on personal liability, licenses to operate, and so forth. If such entities can themselves have religious beliefs of any kind, has the State not helped establish these religions?

Such considerations will, of course, require the return of some enlightenment to the Supreme Court.

One can almost hear the Founders weeping.

Still not sure that elections have consequences?