The War on Workers’ Religious Liberty

The war on women advanced dramatically on Friday, when a judge in Colorado issued a preliminary injunction on behalf of an air conditioning and heating business owner who doesn’t want his employees to use contraception. The ruling only applies to this particular business, so it’s not like anyone else is going to be able to start denying insurance benefits to their employees because they disapprove of their sex lives. Still, it’s a worrying development, especially as the judge seemed sympathetic to the idea that an employer can deny benefits to an employee and earned by their work on the basis of religious disapproval of the employee’s private life.

This is part of the war on women, of course, but also part of another war: the war of employers on their employees. Chris Bertram, Corey Robin, and Alex Gourevitch co-wrote a piece at Crooked Timber where they explained how the workplace has become the place where human rights go to die.

In addition to abridging freedoms on the job, employers abridge their employees’ freedoms off the job. Employers invade employees’ privacy, demanding that they hand over passwords to their Facebook accounts, and fire them for resisting such invasions. Employers secretly film their employees at home. Workers are fired for supporting the wrong political candidates (“work for John Kerry or work for me”), failing to donate to employer-approved candidates, challenging government officials, writing critiques of religion on their personal blogs (IBM instructs employees to “show proper consideration…for topics that may be considered objectionable or inflammatory—such as politics and religion”), carrying on extramarital affairs, participating in group sex at home, cross-dressing, and more. Workers are punished for smoking or drinking in the privacy of their own homes. (How many nanny states have tried that?) They can be fired for merely thinking about having an abortion, for reporting information that might have averted the Challenger disaster, for being raped by an estranged husband. Again, this is all legal in many states, and in the states where it is illegal, the laws are often weak.

Efforts like the attacks on the contraception mandate are part of a larger conservative push to give employers even more power over the private lives of their employees. Salary and benefits aren’t something that rightfully belongs to the employer, but are something earned by the employee. The point of compensation is that once the employer turns it over to the employee, it’s the employee’s to use as they see fit. If conservatives are successful with this effort, it means opening a huge door where your employer has rights to control the compensation after you’ve earned it. If they can prevent you from using your earned insurance benefits from buying contraception, then what’s the legal reason they can’t extend that power to say that you can’t buy it at all, not with money you made working for them?

If that sounds far-fetched, look back at that list of incursions on personal freedom already made by employers, incursions that have included demanding that employees spend their money in specific ways. Employers have demanded the right to dictate their employees’ political beliefs, so why not their religion, too? In one sense, that’s exactly what this lawsuit is about. Withholding insurance benefits is punishment for an employee for not sharing the employer’s religious beliefs. Under the guise of “religious freedom,” conservatives are handing control over to your employer to deprive you of your basic right to your private beliefs regarding things like sexual ethics.

Contraception is a good place to start expanding the amount of power your boss has over your sexual choices, your religious practice, and other aspects of your private life, because a lot of the public is wary of the concept that women really have a complete right to own their own bodies and especially their sexuality. That’s why there’s so much interest after a woman comes forward about being raped in finding reasons her “no” doesn’t count: What she was wearing, how much sex she’s had before, whether she was drinking. If we believed that women had an absolute right to control their own sexuality, these things wouldn’t matter.

The notion that women aren’t the proper owners of their very own bodies is evident in other ways as well, such as in the number of people who think that it’s perfectly okay for men to touch strange women in intimate places on their bodies in public. With this current of belief that women aren’t the proper owners of their bodies, it’s no wonder that we still have problems like Justice Scalia claiming that women don’t actually have a constitutional right to use contraception, even though that’s been settled law for nearly fifty years now.

So that’s what we have here: Conservatives are using the notion that women aren’t the full owners of their sexuality as leverage to create legal precedent for employers to dock your compensation because you don’t share their religious beliefs. But once that door opens, it will almost surely be used to expand your employer’s power over your private life and religious choices even more. Once “religious liberty” is defined as “giving an employer a vote in how you conduct yourself on your own time,” all sorts of other powers will rush in and all other incursions on your private life will be made. Christians who are eager to have a vote in your contraception choices are also going to want to have a vote over whether you live with someone outside of marriage, are gay, or otherwise make personal choices that violate their religious beliefs.