The fallout from the Hobby Lobby decision continues to be a top Democratic Party talking point as liberals hope to rally female voters to the polls. But the leading dissenter on the court in this decision isn’t content to stay on the sidelines of that debate. According to Justice Ruth Bader Ginsburg, the only reason the majority decided that religious freedom trumped a newly-minted right to free contraception is their gender.
In an interview with Katie Couric on Yahoo Global News, Ginsburg said she thinks the five male conservative justices who voted to uphold the rights of religious owners of corporations had a “blind spot” toward women.
Do you believe that the five male justices truly understood the ramifications of their decision?” Couric asked Ginsburg of the 5-4 Hobby Lobby ruling, which cleared the way for employers to deny insurance coverage of contraceptives to female workers on religious grounds.
“I would have to say no,” the 81-year-old justice replied. Asked if the five justices revealed a “blind spot” in their decision, Ginsburg said yes.
The feisty leader of the court’s minority liberal bloc compared the decision of her five male peers to an old Supreme Court ruling that found discriminating against pregnant women was legal.
“But justices continue to think and can change,” she added, hopefully. “They have wives. They have daughters. By the way, I think daughters can change the perception of their fathers.
In response one could say that Ginsburg seems to have a “blind spot” toward the First Amendment and its protections of religious liberty. But just imagine if one of her five colleagues in the majority had said the only reason Ginsburg and Justices Elena Kagan or Sonia Sotomayor had voted against the Hobby Lobby Corporation was because they were women. They would be excoriated as chauvinists who didn’t respect women or believe they were capable of reaching principled decisions on constitutional issues simply because of their gender. Such a statement would be universally condemned, and rightly so.
Let’s remember what was at stake in this decision. The ruling did not invalidate past Supreme Court cases that established a right to contraception, the use of which was once illegal in some municipalities or states. Rather it merely said that the Health and Human Services Department’s interpretation of the Affordable Care Act did not trump the First Amendment. The HHS Mandate proclaimed not so much a right to access to contraception—something that is not in dispute—as a right to free contraception. Rather than protecting a long established or settled right, the mandate was a newly-minted government fiat that threatened to run roughshod over the rights of religious believers who were told they had a choice between violating their religious beliefs or forfeiting their businesses.
That has nothing to do with the rights of women who can easily obtain contraception on their own without their employers paying the bill. The notion of free contraception is merely a policy prescription by the Obama administration, not a principle grounded in law or the Constitution.
The point is, one doesn’t have to share the religious beliefs of the Hobby Lobby owners or the many others who had similar objections to understand that if their religious freedom could be violated in this manner, no one’s rights were safe against the power of a government that was no longer constrained by the protections afforded citizens by the First Amendment. Nor does that have anything to do with being male or a particular variety of religious believer.
Justice Ginsburg is rightly held in great respect by the country. But what she did in her Hobby Lobby dissent is to confuse liberal ideology with the Constitution. Perhaps someday the Congress will pass laws mandating free contraception for all—something that is actually not in the ObamaCare law—but if so it cannot compel religious business owners to pay the bill. Women, like men, deserve the protections of the First Amendment. To say that its defense is an act of insensitivity toward women is not merely incorrect; it is an act of rank partisanship that shows little respect for the Constitution or the high court.