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Robert J. Elisberg Headshot

Courting Disaster

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There are times when words actually do fail -- but that doesn't mean you don't try.

When the Supreme Court voted to give an "exception" to businesses who say they have religious conflicts over aspects of the Affordable Care Act, it pretty much pulled away the curtain that only-just-barely kept the public from seeing those five men operating the big giant head of Oz.

I'm not a lawyer, let alone a Constitutional expert, so my opinion on legal matters here means zero. Then again, Ruth Bader Ginsberg is an expert. And her scathing, expansive, 35-page dissent spoke volumes. Granted, many if not most Supreme Court decisions have dissents, so that by itself doesn't prove anything. But what I think the visceral power of her words does is express what even non-lawyers can see clearly.

And what they can see is that the simple, small "exception" is anything but, and opens the door wide to any business to pick-and-choose what they don't like in this law -- and if this law, why not any other law? (What is it about contraceptive devices that puts them above other laws, after all?) And it opens any religion to pick-and-choose what parts of any law they find goes against their beliefs. (What is it about contraceptive devices, after all, that puts them above other laws?) And it opens any individual to pick-and-choose what parts of laws they as individuals believe they only need follow -- for who's to say why one's person's personal religious belief is more valid than another's, even if that belief is limited to a single person? And what is it about...well, you know...

I'm sure that the majority members on the Supreme Court love to try and suggest that this is just a "limited" decision -- something they've loved doing ever since Bush v. Gore, when they trampled the rationality of the Constitution. But pure logic and common sense says otherwise. Then again, if common sense was actually operating, this decision wouldn't have passed as "law." Are Americans supposed to seriously believe that a contraceptive device is Constitutionally more meaningful, seriously, than anything else in health care? A blood transfusion? Vaccinations? A heart transplant? Anything?

"Startling breadth" is the phrase Justice Ginsberg used in her dissent.

Seriously. Where are all those "originalists" on the Supreme Court who supposedly, they insist, only believe in what the Founder Fathers intended and wrote in the Constitution. Apparently, these justices think that intrauterine devices and the morning-after pill were part of the original intent.

This was a legal decision based on "law" the same way the Pope makes pronouncements based on scientific research.

I understand conservative Supreme Court judges wanting to support their personal principle. But living your life based on personal principle is worlds different from setting Constitutional law for everyone.

And I understand conservative Supreme Court judges wanting to support their personal religious beliefs. But that's why God created houses of worship.

If Supreme Court judges want to jerry-rig the Constitution to fit their personal principles and religious beliefs, the minimum we should expect from them is that they at least try to make it seem less obvious -- if only for the sake of putting on a good show. After all, you never want to see the special effect given away and puppet strings, it ruins the illusion.

I am sure that there will be members of the religious right who'll say that this disappointed reaction is all just sour grapes from liberals and sane, rational humans who don't like a Supreme Court decision. But this isn't a case of not "liking" a decision -- it's a case of seeing the illogical, problematic conflicts which the decision causes by saying it is merely "limited" in scope, when it can't be anything but the opposite.

Ultimately, this is such a conservative thing to do. We don't like that Bill Clinton was elected president -- let's impeach him. We don't like that Barack Obama was elected president -- let's insist he's illegitimate. We don't like that black people are voting -- let's restrict the rules when polling booths will be open. We don't like that the law allows women to get abortions -- let's make it as difficult as possible to get those legal abortions. We don't like that President Obama signs Executive Orders, even though the fewest in 117 years, even though more than half as few as Ronald Reagan signed -- let's threaten to sue him. We don't like the Affordable Care Act -- let's allow people to individually block whatever parts the want.

So much for the "Party of Law and Order."

Would that all laws were such that we could pick and choose what parts of laws we must follow, based solely on our religious belief. Imagine that world.

There is a religion I know that believes "red" is the color of the devil, and it is morally wrong to stop at intersections. Well, okay, I don't actually know of such a religion, but I wouldn't put it past someone starting it tomorrow.

There is a religion I know, though, that believes conservative decisions by the Supreme Court are the work of the devil, and it is morally wrong to follow them. Oh, okay, again, no, I don't actually now of such a religion, but I wouldn't put it past someone starting it today.

What if you're a Quaker or some other pacifist religion that's against war or -- hey, Thou Shalt Not Kill. Why can't they now not pay taxes that go to the military?

Y'know, my feeling is that if the owners of a private business are against abortion, they shouldn't be forced to have one. And they also shouldn't be forced to perform one. But if they choose to actually hire American citizens as they're employees, they should stay out of their employees bedrooms and lives and provide them the opportunity to live them as they see fit.

If you provide an employee with a birth control device, there is nothing in the law that says it must be used. Maybe they want to have the birth control device to keep on their shelf as a reminder of the evil of its ways.
What the employee does with it is their own personal choice. In the end, I thought that's what conservatives so dearly loved. Supposedly. The whole "Era of Personal Responsibility."

Yes, yes, I know. That's as naive as thinking conservatives actually believe in small government and fiscal responsibility. Under Ronald Reagan, after all, the Godfather of Modern Conservatism, the national debt went from $700 billion to $3 trillion, and the federal government expanded by 60,000 federal workers. It's getting more clear that conservatives believe in government as big and vaginally invasive as possible that passes any law, as long as they approve.

It's the Supreme irony.


To read more from Robert J. Elisberg about this or many other matters both large and tidbit small, see Elisberg Industries.