- Sep 14, 2011
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Sebelius v. Hobby Lobby: Supreme Court hears oral arguments in the contraception mandate case.
Women talking about control of their own bodies?
Shocking.
And yeah, its all code for sex.
One thing that was immediately clear Tuesday morning: There is finally a womens team at the high court. For most of Clements 45-minute argument on behalf of the two religious objectors, the only questions come from the courts three women, Sonia Sotomayor (the patch: tenacious, hardworking, and unshakable), Elena Kagan (the pill: unobtrusive yet sneakily effective), and Ruth Bader Ginsburg (IUD: deceptively small, monstrously potent, and lasts forever). Sotomayor and Kagan in particular pound Clement about the implications of using the exacting standard of scrutiny set forth under the RFRA to assess every corporate claim that a religious preference is burdened. Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion, vaccines? asks Sotomayor. Clement replies that contraception is unlike transfusions and vaccines because it is so religiously sensitive, so fraught with religious controversy. Which is, I suspect, code for sex.
Kagan responds, So one religious group could opt out of this and another religious group could opt out of that and nothing would be uniform. And Ginsburg points out that the reason RFRA passed with such broad, bipartisan support was that Congress took out a proposed amendment that would have enabled secular employers and insurance providers to deny coverage on the basis of religious beliefs or moral convictions. Au contraire, says Clement. RFRA passed broadly because it afforded such broad protections.
Kagans not buying it: Your interpretation of [RFRA] would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard and allow employer after employer to voice religious objections to sex discrimination laws and minimum wage laws and family leave and child labor laws. All of which would be subject to what she describes as this unbelievably high test, the compelling interest standard. Employers will, under that standard, virtually all win.
Justice Samuel Alito (morning-after pill: always in possession of the power of perfect hindsight) interrupts to ask, In all the years since RFRA has been on the books, has any of these claims involving minimum wage, for example, been brought and have they succeeded? Kagan retorts that the reason such cases havent been brought is because this kind of test has never been approved by the courts. But, she adds, if your argument were adopted and there was a strict scrutiny standard ... then you would see religious objectors come out of the woodwork. She throws in another concern: And because you say you cannot test the sincerity of religion. I think a court would be, their hands would be bound when faced with all these challenges.
Women talking about control of their own bodies?
Shocking.
And yeah, its all code for sex.