Last week, in the case of Burwell vs Hobby Lobby Stores, the US Supreme Court ruled that “closely held” corporations – companies whose shares are held by a small number of shareholders – could refuse to provide healthcare plans that include contraception coverage, if they have a religious objection.
As my colleague Paul Sims reported, this was a particularly significant decision because it implies that corporations – not just individuals – have the right to religious freedom, and therefore the right to cite religious objections in refusing to provide services or meet legal requirements.
It is already clear that the ruling will have wide-ranging consequences. The New York Times has reported that, following the decision, judges took further steps that will make it harder for women to get contraceptive cover if they are refused by their employers. This is because an exemption written into healthcare legislation to cover religious objections has been watered down, meaning that many women could be left entirely without contraceptive cover.
Critics of the Supreme Court’s decision warned that the ruling could be used by companies as a basis for challenging anti-discrimination legislation. And less than a fortnight after the ruling, it appears that this is already happening, with a group of faith organisations stepping up the pressure on the White House to exempt them from a forthcoming executive order that will outlaw discrimination against gay men and women by companies that do government work. Major faith organisations, including some allies of Barack Obama’s, have said that the president should add an exemption for groups whose religious beliefs oppose homosexuality. Dated 1 July, the letter says: “we are asking that an extension of protection for one group not come at the expense of faith communities whose religious identity and beliefs motivate them to serve those in need.”
It’s a fine balancing act for Obama. He is attempting to legally protect the rights of gay people (the executive order would extend anti-discrimination measures to the 29 states which do not have such provisions). But he is also seeking to avoid the conservative uproar that will ensue if he is seen as intruding on religious belief or the freedom of religious expression. The Supreme Court’s decision last week adds weight to the latter camp.
This points to a deep division in US politics, between the religious right wing and liberalising forces. The fact that this religious right wing is, through the Republican Party’s Tea Party wing, particularly well represented in Congress and the Senate, makes issues such as abortion, contraception, and gay rights even greater political hot potatoes than they already are in the US. The Hobby Lobby case epitomised these contesting arguments, about rationality, and the protection of women’s rights and gay rights, versus religious freedom. As the Economist’s Democracy in America blog argued:
The most disturbing part of the Supreme Court's ruling in Hobby Lobby is its determination that the Court must take all such religious objections at their word, and cannot apply any test of rationality:
“The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.”
In other words, the taboos conceived by religious objectors, no matter how absurd or irrational, are not to be questioned, so long as they are "honest".
Democrats have tabled an urgent bill to override the Supreme Court’s decision and compel all employers to provide full contraceptive coverage. If they are unsuccessful, it seems the reverberations of this ruling will continue to be felt for some time.
