Friends:

This month’s Supreme Court ruling on Hobby Lobby, as well as subsequent orders handed down from the bench, have far-reaching consequences for our movements, and what we do now is critical.

Sometimes in moments like these, we reach out to our broader community to ask them to offer their expertise on an issue or instance that we’d like to better comprehend. In this case, Katherine Franke, Director of the Center for Gender & Sexuality Law at Columbia Law School and longtime supporter of Astraea, graciously agreed to break down the SCOTUS decision and tease out some of the broader implications for our movements/people.

Below is Katherine’s piece, which I am so happy to be able to share with you all. Please take a minute to read it and share it with your networks.

In deep solidarity,

J. Bob Alotta
Executive Director

Hobby Lobby and Reproductive Rights – The Broader Implications For The Left

Katherine Franke
Sulzbacher Professor of Law and
Director of the Center for Gender and Sexuality Law Columbia Law School

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, its 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.

• As Corporations Become More And More Human, Women Become Less And Less So: Hobby Lobby is as much about corporate power as it is about religious freedom. One of the issues in the Hobby Lobby case was whether a for-profit corporation could hold religious beliefs that are protected by RFRA. The federal government and many others argued that a corporation – a legal fiction as we lawyers call it – can’t “believe” in a god, “hold” religious convictions, or ““have” a faith. Yet, the Court held that it could. Just like the Court found in Citizens United that the First Amendment protected the speech rights of corporations to participate in the political process by donating money to candidates and causes they favor, Hobby Lobby radically expanded the “rights bearing personality” of corporations, most notably at the expense of the “rights bearing personality” of real, human women. Justice Alito’s opinion in Hobby Lobby instructs lower courts to defer to the judgment of corporate leaders that a public policy conflicts with their “sincerely held religious beliefs.” At the same time, in case after case courts have upheld state and federal laws that signal a distrust of women’s capacity to make responsible decisions about their own health care and reproduction, paternalistically intervening in those decisions to steer them in a direction the state favors. In these two lines of cases we see the courts deferring to the moral reasoning of corporations and second-guessing the moral reasoning of women.

• Religious Free Exercise Claims Advance A Larger, Long-Term Effort By Corporations To Escape Governmental Regulation: In important ways, the religion vs. contraception question in the Hobby Lobby case was besides the point. This case ought to be understood as part of a larger assault by corporate-America on any form of governmental regulation. This effort first gained traction in the Reagan years and has been the cause célèbre of the corporate, free-market, right for almost half a century. Pro-business, libertarian advocates such as the Koch Brothers, the American Enterprise Institute and the Heritage Foundation strongly opposed the Affordable Care Act on the ground that it would impose new and costly regulations on businesses that were best left to the free market. They have waged a campaign to pick off, defund, and challenge as much of the law as possible by appealing to familiar conservative/libertarian principles that condemn any regulation of businesses, be it financial regulations, consumer protection, workplace safety laws, non-discrimination laws, or laws protecting workers’ collective bargaining rights – to name just a few. The long-term goal of this conservative effort has been to shrink the scope and power of public regulations that aim to correct for market failures, exploitation of workers, and the unequal leverage that corporations have to ignore public values such as equality, transparency and safety.

• The Hobby Lobby Case Was Really About Making Religious Values Equal To, If Not Superior To, Secular Law:The Green family, the owners of Hobby Lobby, essentially holds the view that they are governed by both religious and secular law at the same time. Not just when they’re in church, not just when they’re at home, but wherever they are, in essence surrounding themselves with a “portable church” with which they surround themselves wherever they go. When those two legal systems come into conflict, religion should always win. This is, in essence, a plea for legal pluralism, a radically different approach to legal governance than we have historically tolerated in the U.S. It’s one thing to claim that religious law and doctrine should prevail in religious or private contexts, yet it’s quite another to say that religious law and doctrine can and should challenge the legitimacy of secular legal rules any and everywhere. Part of living in a multi-cultural and democratic society like the U.S. is the agreement that we surrender the formulation of rules that we will live by to the democratic process. Through this process we create a shared American culture. The claim for religious exemptions boils down to a rejection of that notion of a shared culture about which we deliberate, vote and agree to be bound. Instead, the Hobby Lobby owners and their ilk insist that they should not be bound by secular rules that they don’t agree with and that they should not have to pay any price for doing so. No one else gets to opt out of laws they oppose in this way, shifting the costs of those beliefs onto other third parties who do not share those beliefs.

• Religious Exemptions Are Bad For Religion: Lastly, and perhaps most importantly, the politics surrounding the ballooning assertion of religion-based exemptions from the contraception mandate or anti-discrimination laws that protect LGBT people, for instance, set up a false conflict between religion on the one hand and sexual or gender equality on the other. But there are many, many people of faith who support reproductive and LGBT rights. Their voices, their values and their ability to push back against the conservative take-over of something called “religion” have been greatly diminished in the way this issue has been framed by courts and the media. Religion is not necessarily hostile to sexual rights, but it sure feels like it is from the way this issue is being talked about.

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.