PLEASE LEAVE GOD ALONE: I don’t know what Catholic school Supreme Court Justice Samuel A. Alito Jr. attended, but if he’d gone to mine, he’d have gotten his ass seriously kicked. First, he’d have gotten beat for insisting on that pretentious middle initial “A” and then that silly “Jr.” at the end. But mostly because of his willful, extravagant ignorance when it came to his own religion. I say this because Alito, one of 11 Catholics ever to sit on the Supreme Court, just authored one of the more brilliantly twisted legal opinions ever exalting corporate interests to unimaginably new heights, in this case at the expense of women. Naturally. In writing for the court’s 5-4 majority, Alito explained why the Hobby Lobby, a closely held corporation with 500 outlets and 13,000 employees, does not have to comply with the federal health-reform law requiring it provide its female workers insurance packages that include 20 contraceptive options, because so doing would offend the company’s religious beliefs. Four of the 20 contraceptives effectively prevent fertilized eggs from implanting themselves into the uterine wall, thus stopping an unintended pregnancy before it starts. Hobby Lobby — believing life begins at conception — regards this as murder to which it will not be an accomplice.
Okay, it’s a debatable point, but in the unholy legislative fracas out of which the Affordable Care Act emerged, church-owned businesses and religiously based nonprofits were allowed to opt out of this contraceptive requirement. At issue in the Hobby Lobby case was whether “closely held” (meaning 50 percent of the shares are owned by five people or fewer) for-profit corporations could, too. The answer, according to Alito, is resoundingly yes. That’s because, he explained, corporations are people, too, at least when it comes to freely expressing their religious beliefs without undue government burden. In this case, Alito found, it would be less burdensome on Hobby Lobby if the federal government simply picked up the tab for getting Hobby Lobby employees the four contraceptive options — morning-after pills and IUDs — in question. Sweet deal, right? But this goes way beyond court-sanctioned corporate welfare.
Without indulging in all the usual anti-corporate blather, you have to ask yourself — as Alito failed to — does a corporation have a soul, and can it go to hell? If it can’t be damned to an eternity of hellfire and perdition, then it obviously can’t qualify as a “person.” Let’s face it: The threat of eternal damnation is the functional core of all Western religion. It’s what keeps us from killing each other willy-nilly. Do the Ten Commandments say, “Thou Shall Not Covet Thy Corporation’s Wife?” Once you strip away all the cool myths and wispy parables, religion is all about judgment, accountability, and consequences. You screw up, you get caught, you pay. Corporations, however, were invented to do just the opposite. Corporations are fictitious legal entities created to shield individual officers from personal responsibility or liability for corporate mistakes and misdeeds. In contrast to organized religion’s threat of life without possibility of parole, the corporation remains the ultimate get-out-of-jail card.
Alito’s slick genius was to seize on some hippie-dippie, feel-good act passed unanimously by Congress in 1993 in response to bipartisan public outrage when a couple of Native American drug counselors from Oregon got fired for taking peyote as part of a spiritual ceremony. When they were subsequently denied unemployment, they took their beef to court. In 1990, the Supreme Court told them to pound sand. That’s when Congress rewrote the law to say what it thought it already said, namely that government shall not impose an undue burden on a person’s expression of religious belief unless a compelling public benefit requires it. Even then, the act mandates government must take pains to find the least restrictive intrusion. Nowhere in the legislative history did anyone contemplate that “person” meant anything other than a single, individual, flesh-and-blood human being. But Alito looked up the word “person” in the Dictionary Act, adopted by Congress in 1871 to define all the key words used in making laws, and discovered that corporations could be inferred from the word person. Of the five courts that heard this case first, three found this interpretation made no sense.
If corporations are people, one wonders if and when the Supreme Court will ever make the same finding on behalf of women. It would be a nice gesture. And it’s a big deal. It turns out the vast majority of all corporations — 80-90 percent — are “closely held.” They account for 52 percent of the nation’s workforce. What’s to stop these corporations from citing some sincerely held religious belief and opting out, too? Who gets screwed? The millions of women — who on average pay 68 percent more in out-of-pocket expenses on health care than men — who the Affordable Care Act was supposed to cover. The taxpayers, who, under Alito’s scenario, could be forced to pick up the tab. And why stop at those four forms of contraception? What about the other 16? Or what about blood transfusions, morally opposed by Jehovah’s Witnesses? Antidepressants — opposed by Scientologists? Or any number of medications and medical devices made with pig byproducts, anathema to Muslims? What about Amish objections to Social Security? What about the chain of Piggie Park barbecues in South Carolina, whose owner cited deeply held religious reasons for refusing to serve black people? Justice Ruth Bader Ginsburg asked just these questions in her scorching dissent. She described Alito’s decision as a “minefield.” He didn’t just open the door to such litigation; he blew up the house. Alito repeatedly asserted his ruling applied narrowly to only the facts at hand, but clever lawyers like him are much better at getting the toothpaste out of the tube than getting it back in.
Alito, it also turns out, has developed the reputation for being the rudest member of the court. Or maybe he just doesn’t like Ginsburg. During a recent case, Alito rolled his eyes so everyone could see as Ginsburg read her dissenting opinion out loud. Manners, it seems, are something else Alito never managed to learn. At my Catholic school, we’d have taught him.