As I noted on Monday, the aftershocks of the Hobby Lobby decision have far-reaching consequences, including hard-won gains for LGBT people. We're not just talking about ENDA or same sex marriage here.
In striking down Obamacare’s contraception mandate, Justice Samuel Alito seemed to hope the decision wouldn’t set off a feeding frenzy. Like a parent who lets their kid stay up past bedtime just this once, Alito tried to assure that the Court’s decision does not exempt employers from covering just any drug or medical procedure that conflicts with their religious beliefs—for instance, a blood transfusion or vaccines. He also dismissed Justice Ruth Bader Ginsburg’s suggestion that the majority ruling could be used to justify racial discrimination. “The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction,” the associate justice wrote. “Our decision today provides no such shield.”
Despite Alito’s stated intentions, this week’s ruling sparked more questions than it answered: Can an employer refuse to cover Viagra? What about HIV medication? If a boss can opt out of any law so long as she is motivated by a “sincerely held belief,” can they refuse to extend benefits to a same-sex spouse?
“The Supreme Court has ruled that for-profit corporations have religious rights and have accorded them religious exemptions,” said Doug Kendall, president of the Constitutional Accountability Center, in a statement. “Despite their attempts to qualify that ruling, it opens the floodgates to claims by corporations for religious exemptions.”
What we have here is the product of 40 years of focused efforts on the part of conservatives to build their infrastructure toward turning the ship of state toward a theocracy. When are liberals going to understand that it's not enough to win campaigns without also building a similar infrastructure?
For example, shouldn't liberals be preparing challenges to RFRA on the grounds of constitutionality, or filing lawsuits based on the 14th amendment? Or how about working to get those last three ERA states ratified?
It isn't enough to shake fists anymore or just sign. Alito is the product of a carefully crafted strategy and a conservative commitment to install their own activist judges. If liberals can't form one to counter them, conservatives will win by default.
It's past time for serious infrastructure investment on our side of the aisle, don't you think?