While conservatives took some hits in public opinion by attacking Sandra Fluke in a sexualized fashion—even going so far, as Rush Limbaugh did, to call her a “slut” and demand that she perform in porn in order to get insurance coverage for contraception—the entire spectacle did manage to succeed in one regard. The right did successfully plant the idea that the battle over the birth control benefit in the Affordable Care Act was one of religion vs. sex, which inevitably leads many people to think that as long as they aren’t sexually active women of reproductive age, then it doesn’t affect them personally. But the ugly reality is that this entire battle is about something bigger, something more terrifying. It’s about private businesses and corporations creating a legal loophole that allows them to opt out of an array of worker protections and other regulations, all by citing “religious freedom” as a reason. With the birth control benefit heading for the Supreme Court, we should all be worried about the possibility of a blanket decision that allows your boss to pretty much do whatever he likes, as long as he tacks “because Jesus said so” at the end of his decision.
What’s at stake is this: The argument in court isn’t “ew, sex is bad, naughty, naughty!,” though that is clearly the argument being used in the court of public opinion. In real court, the argument is that businesses have a right to opt out of any law they claim conflicts with their religious beliefs. From some of the coverage of a successful suit arguing just that in Florida:
U.S. District Judge Elizabeth A. Kovachevich issued a 37-page decision late Tuesday afternoon declaring corporations do have First Amendment freedom of religion protections.
“Any action that debases, or cheapens, the intrinsic value of the tenet of religious tolerance that is entrenched in the Constitution cannot stand,” Kovachevich wrote.
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The notion that a business, which has no brain, can have a “belief” is, of course, preposterous. Unfortunately, the conservative-controlled Supreme Court is open to preposterous arguments, so long as the conclusion is that corporations can do whatever they want. The 2010 Citizens United decision, for instance, eliminated all sorts of campaign finance restriction on corporations on the grounds that they are the same thing as “persons,” and thus have “freedom of speech” guaranteed by the Constitution. It’s not a big leap to suggest that this same logic will extend to religion, with corporations being deemed “persons” that can hold religious beliefs. Do corporations pray? Do they go to church? No, of course not, but they don’t live and die like people, either, and that didn’t stop the Supreme Court from deciding to treat them as people.
Of course, women are actually people, and so should be free to birth control covered without a co-pay under their insurance coverage, which they earn through working or paying out-of-pocket. But the Court as it stands tends to lean towards feeling corporations are more people than people are people these days, so there’s serious reason to worry.
Should this happen, we should all be terrified. The problem with a “religious belief” is that it can be whatever you want it to be. For instance, before it became politically expedient for mobilizing right-wing voters, evangelicals weren’t opposed to abortion, much less female-controlled forms of contraception like the pill or IUDs. Once it became obvious that creating a moral panic over legal abortion would be a good way to marshal evangelical voters, right-wingers adopted the abortion issue. As it became more clear how valuable affordable contraception is to women’s rights and freedoms, opposition to some forms of contraception got folded into the belief system, as well. “Religion” is an empty set. If a corporation can have a religious belief, that makes it even emptier, just an opportunity to have a “get out of whatever regulation you want” card.
We’re already seeing the expansion of “opt-out” tactics on regulations based on religious belief. Duquesne University is already using the same logic that was being used to argue against the birth control benefit for universities to argue against having to let their adjunct professors form a union. If the Supreme Court decides that corporations deserve similar consideration, then it’s not much of a leap to say that said corporations will start flocking to the argument that unions—or even the minimum wage—insult their religious beliefs, and therefore they shouldn’t have to follow those rules.
The religious right is all ready to go with their arguments for why corporations should be allowed to bust unions, avoid labor protections, and even opt out of taxes should the Supreme Court let them have their way on this contraception mandate thing. Christian right thinkers have argued that the Bible supports their contention that workers shouldn’t unionize or demand higher wages. Religious right activists have joined the anti-union movement, based on the belief that their religion opposes the existence of unions. If corporations get to have religion and their religion means they get to opt out of laws, then it’s a safe bet that many corporations will suddenly discover they’re drawn to a Christian faith that teaches that Jesus hates unions.
That’s why it’s so critical for everyone, and not just reproductive rights activists, to drum up attention to the danger that this battle over the contraception mandate represents. At the end of the day, the birth control benefit isn’t about sex or “babies.” It’s about whether or not the government can set a minimum standard for how employers treat their employees: Whether the employee has a right to privacy and whether the government can set a minimum compensation requirement. If the Supreme Court carves out a “religious” exception on this, the ramifications could echo through all levels of employment law. This should matter to anyone who has ever had to work for someone else to make a living. It’s a direct threat to our very right to fair treatment no matter who we work.