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Could the Supreme Court Re-Legalize Discrimination?

The signals coming out of the conservative branch of the US Supreme Court should give Americans pause.

United States Supreme Court in Washington, DC. (Photo via Shutterstock)

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If Hobby Lobby wins the right to deny health insurance benefits guaranteed by law to women, where will corporations’ drive to ignore whatever laws they feel justified ignoring under their own personal convictions or prejudice end?

The signals coming out of the conservative branch of the US Supreme Court should give Americans pause. For if Hobby Lobby wins the right to deny health insurance benefits guaranteed by law to women, where is the end?

In the eyes of many, as punishment for Eve’s decision to go against God’s admonishment to not eat the apple in Eden, God introduced the pain of childbirth to women and gave husbands rule over their wives (Genesis 3: 6-24). Jews are implicated in Jesus’ arrest, trial and crucifixion (John 11:45-57; John 18: 12-14; John 19: 6-16). And the Book of Genesis describes the basis for what are known as the Mark of Cain (Genesis 4:8-18) and the Curse of Ham (a.k.a. the Curse of Canaan; Genesis 9:18-26) theories. These latter two have been used to justify the inferiority of non-Caucasians to Caucasians.

Will employers have the right to deny any insurance coverage to women, Jews or non-Caucasians as punishment for historical actions codified in religious texts? Will insurance companies make similar arguments to rescind policies for pre-existing or newly emergent conditions?

Furthermore, if religious-belief arguments can overturn a business-level concession demanded under the Affordable Care Act, then what is to stop corporations from using the same arguments to justify ignoring fair-pay laws? Or refuse to serve blacks as customers once again?

Don’t laugh. In 2004, recent Republican presidential candidate Rep. Ron Paul (R-Texas) denounced the Civil Rights Act as “a massive violation of the rights of private property and contract, which are the bedrocks of free society.” His son, anticipated presidential candidate Sen. Rand Paul (R-Krntucky), echoed those thoughts later, saying, “I think it’s a bad business decision to exclude anybody from your restaurant – but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that’s most of what I think the Civil Rights Act was about in my mind.”

Got that? According to a leading Republican candidate for the 2016 presidential election, so long as a transaction does not entail government monies, massive discrimination against women, blacks, Latinos, Middle Easterners, Asians, and LGBT community members should be allowed. With its recent decision to strike key provisions of the Civil Rights Act, the Roberts Court already has shown a reckless disregard for the history of prejudice in this country.

Supreme Court justices often use slippery slope arguments to justify their decisions. Justice Scalia memorably argued against the personal responsibility clause of the Affordable Care Act by wondering if the federal government could force everyone to buy broccoli. Similar slippery slope arguments have been used to establish a legitimate state interest in cases involving assisted suicide, searches and seizures, and flag burning. Never mind that the International Federation of Gynecology & Obstetrics has judged that emergency contraception does not inhibit implantation of fertilized eggs, Hobby Lobby argues that so long as you believe that it is an abortifacient, you should be allowed to ignore federal law. One would hope that the Court can see where a judgment in favor of Hobby Lobby could take this nation – from a nation of laws to a nation of whatever you feel is justified under your own personal convictions or prejudice.

Firms exist as separate legal entities from their owners to provide a vehicle of aggregating interests and capital toward value-creating endeavors. But they also provide a vehicle to limit liability to those spearheading those endeavors. Given this immense giveaway of legal accountability to business owners and shareholders, it makes sense that we as a society can demand some concessions on other dimensions of firm activity in return. Chief among them is the treatment of otherwise equivalent Americans as equals, both as employees and as customers. Society has created a latticework of civil rights, workplace discrimination and workplace harassment legislation that allows all Americans to avail themselves equally of the opportunities that corporate forms create. A judgment in favor of Hobby Lobby runs the risk of dismantling that entire latticework, and needs to be vigorously opposed.

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