Much as been written about the Supreme Court's recent Hobby Lobby ruling and how it took up a conflict between reproductive rights and religious liberty, coming down on the side of religion and ceding to the religious right's effort to stain contraception with the stigma associated with abortion.
Religion, Hobby Lobby argued, ought to work like a trump card, throw it down and it out-ranks all other rights that might also be in play, such as women's reproductive liberty or workplace equality. The majority of the Court in Hobby Lobby bought this approach to religious liberty rights: when it comes to a complex social context like the workplace, where the employment relationship is mediated by a thick web of rights and responsibilities, secular laws must yield to the corporate owners' religious faith when they come into conflict.
The Hobby Lobby decision offers a shockingly radical interpretation of the scope and power of the right to religious freedom. Some might even pillory it as a form of judicial activism on account of how broadly the Court interpreted the Religious Freedom Restoration Act (RFRA), certainly well beyond what Congress intended when it was passed in 1993. While the decision marked a devastating loss for reproductive rights and women's workplace equality, it's radical reach will likely radiate far beyond the pickets of the specific context raised in the case. Contextualizing the decision will help illuminate the larger implications of Justice Alito's majority opinion. Consider the following frames for understanding the stakes:
- We've Seen This Ploy Before, It Has A Rich Racial History: Historically, religion has been an effective tool to do an end-run around the democratic process. Plan A for a conservative advocacy group is typically to oppose a change in the law that they disfavor (racial equality, marriage rights for same-sex couples, workplace equality, women's reproductive rights, for example). When they end up on the losing side in a democratic process and the law is changed to expand rights for a marginalized group, Plan B kicks in: claim that the new law offends their religion. This was the strategy put into play by Senator Strom Thurmond when he drafted the "Southern Manifesto" in 1956 defending the morality of racial segregation immediately after the Supreme Court's decision in Brown v. Board of Education. A central ploy was to set up private religious schools that were racially segregated. This worked for a while, until the Supreme Court made them stop. Religion can't be the justification for a license to discriminate.
These are just a few of the ways we can understand the Hobby Lobby case as about women's reproductive rights but also about so much more. In fact, well-funded conservatives, many of whom carry no brief for religion, saw their interests advanced by those claiming a religious exemption from the contraception mandate in the Affordable Care Act