Workers Vanguard No. 1054
17 October 2014
Anti-Woman, Anti-Black, Anti-Labor
Supreme Court Gets That Old-Time Religion
With the U.S. Supreme Court’s summer break now over, there is every reason to be afraid, very afraid. In the closing months of its last session, women, black people, workers—just about anyone outside the property-owning white male demographic of the country’s founding fathers—saw their already severely depleted rights fed into the judicial woodchipper. In Harris v. Quinn, the Court found unconstitutional a public-sector union’s authority to collect fees from workers it represents. In Town of Greece v. Galloway, the high priests of the American injustice system sanctioned the reading of Christian prayers at the opening of town board meetings over the opposition of offended residents. In Schuette v. Coalition to Defend Affirmative Action, a Michigan ballot initiative banning the consideration of race in admissions to public universities was upheld, driving yet another stake into the corpse of affirmative action in education.
The celebrations last week that greeted the Court’s refusal to take up the overturn of gay-marriage bans in some states should do nothing to assuage the fear. Even as many same-sex couples were finally able to wed, the growing acceptance of this basic democratic right is largely explained by the conservative nature of the institution of marriage. Despite its temporizing, the Court undoubtedly will revisit the issue in the future. Characteristically, once the justices went to work, they upheld restrictions on voting rights except in one case where the adoption of those restrictions came too close to election day. Chaos at the polls would not do much for the trappings of democracy.
Among the high court’s most ominous rulings in its previous term, and the one drawing the most attention, was the June 30 decision in Burwell v. Hobby Lobby. Citing the 1993 Religious Freedom Restoration Act, the Court held that the religious beliefs of the Christian fundamentalist owners of a “closely held” for-profit corporation were violated by requiring the company to pay for health insurance coverage for certain forms of contraception under the Affordable Care Act (ACA).
Crafted as having narrow applicability, Hobby Lobby is a dangerous stepping stone for wide-ranging judicial incursions on basic democratic rights. Hobby Lobby turns the separation of church and state, embodied in the First Amendment, on its head. The company’s owners had not been deprived of the right to their religious practices. Rather, they used the sword of their religious beliefs to trample on the rights of others. Where does it stop: exemptions from public health measures, such as vaccinations; tearing up health and safety regulations; dumping minimum-wage and child-labor legislation; banning unions? The Supreme Court ruling is not a “slippery slope” but another mudslide in the 40-year crusade to shoehorn religion into all spheres of public life, the purpose of which is to enforce social conformity and inculcate respect for established authority.
What rankles the fundamentalists is not that their religious practices are being infringed upon but that obstacles remain in the way of forcing their bigoted practices on others. Even before the Court’s edict, in February the Kansas House of Representatives passed a bill that would have allowed people citing their religious beliefs to refuse to do business with same-sex couples. In Idaho, Oregon, South Dakota, Arizona, Ohio and Oklahoma, similar bills have been introduced.
Justice Samuel Alito, who has emerged as the laureate of judicial reaction, promises that laws prohibiting racial discrimination will not be affected by its ruling. Perhaps. But citing religious objections to social measures was part of the legal scaffold upon which racist opposition to the 1960s civil rights laws were based, supplementing the old Confederacy’s call for “state’s rights” and other constructs. That such plaints are echoed today is not accidental.
The Court under Chief Justice John Roberts has already gutted the 1965 Voting Rights Act of any meaning. In further knifing affirmative action, it has repeatedly wielded the equal protection clause of the Fourteenth Amendment to the Constitution, which was adopted to protect the rights of black people who had recently been emancipated from slavery. A CNN report (10 April) asked, “Has the Roberts Court Placed Landmark 1964 Civil Rights Law on a Hit List?” Notably in this regard, the Court has interpreted legislation adopted to facilitate sexual discrimination claims in employment to make it more difficult to prove such claims.
The Homage Vice Pays to Virtue
Hobby Lobby’s owners, David Green and family objected to the emergency contraceptive pills Ella and Plan B (so-called “morning after” drugs) as well as intrauterine devices (IUDs), all of which they falsely define as means of abortion. Prior to challenging the implementation of the ACA, though, Hobby Lobby’s employee medical insurance covered Plan B and Ella. The company’s 401(k) plan continues to invest millions in funds that own the companies that make birth control, including Plan B. Yet the Supreme Court declared that the ACA mandate to cover emergency contraceptive pills and IUDs—products that reap financial benefits for Hobby Lobby officers—imposed a “substantial burden” on the company’s religious liberty.
The religious objection to these contraceptives as abortifacients was based on the claim that they destroy fertilized eggs by interfering with implantation in the uterus. This is demonstrably false. These birth-control measures prevent pregnancy by delaying ovulation. Even abortion opponent Dennis Miller, director of the bioethics center at the Christian Cedarville University, conceded that emergency contraceptive drugs do not cause abortion. But this meant nothing to the Supreme Court majority.
In a deception appropriate to the highest body of the legal profession, the Court promised that the Hobby Lobby decision would be applied narrowly. Alito assured those concerned that only the four specific contraceptive measures objected to by Hobby Lobby’s owners were implicated. But the following day, the Court clarified that the ruling extends to all 20 forms of contraception covered by the ACA. The Court also sought to massage its foreseeable critics by declaring that this covered only “closely held” corporations, i.e., those where a few individuals, often family, own most of the stock. Hobby Lobby is not some mom-and-pop operation, as implied by the Court, but a multibillion-dollar chain of craft stores, with thousands of employees. “Closely held” describes nearly 90 percent of the corporations in the U.S., which are now deemed to embody the religious beliefs of their owners.
Anticipating skepticism and even outrage among the public over ascribing human attributes to corporations, Alito opined, “A corporation is simply a form of organization used by human beings to achieve desired ends.... When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.” So now fetuses have rights, corporations have rights—how about black people and home health care workers? Erwin Chemerinsky, dean of the UC Irvine School of Law, answered Alito in a Los Angeles Times op-ed piece (30 June): “A corporation—a fictional entity—is created to protect its owner from liability. So long as the corporation is run as a separate entity, the owner is liable only for what he or she invests in it.” He added, “But a fictional entity cannot have a religious conscience or religious beliefs.” Except, of course, the worship of profit, capitalism’s ecumenical religion.
Anti-Abortionism: Love Child of Religious and Racist Reaction
For over 30 years, the Christian fundamentalist right has spearheaded the backlash against the limited gains won by women and black people in the 1960s and early ’70s. At the heart of this crusade has been the war on women’s right to abortion, an effort that also includes attacks on access to contraception. The anti-woman bigots view abortion as a threat to the patriarchal family, which along with religion is a key prop of capitalist class rule, helping to regiment the population and instill social conservatism (see “For Free Abortion Available to All!”, WV No. 1052, 19 September).
Religion emerged as an organized political force in the late 1970s, with the Democratic Party administration of “born again” Jimmy Carter (1977-1981). In the wake of the civil rights and antiwar movements, and particularly after the humiliating defeat of U.S. imperialism in the Vietnam War, the capitalist rulers under Carter launched a major ideological assault aimed at instilling unquestioned acceptance of capitalism, god and family, including the desirability of dying for one’s country. Like every rightward shift in this country, it was tied to a rise in racist reaction against black people. As school busing, a minimal but real step toward school integration, was going down to defeat in city after city, Carter stoked the segregationist backlash by proclaiming the virtue of “ethnic purity.”
Writing in Christian Ethics Today (Spring 2014), historian Randall Balmer noted, “Although abortion had emerged as a rallying cry by 1980, the real roots of the religious right lie not in the defense of a fetus but in the defense of racial segregation.” The catalyst for the rise of the Christian right as a political factor was the denial of tax exemptions to segregated schools across the country by the administration of Republican president Richard Nixon in the early 1970s. This came to a head with the 1976 IRS rescission of tax-exempt status for the arch-segregationist Bob Jones University in South Carolina, driving Jerry Falwell and his fellow bible-thumpers into a frenzy over what they saw as government interference into church affairs. Recognizing that openly organizing around the call to defend segregation would not be politic, conservative strategist Paul Weyrich and Jerry Falwell & Co. cast about for another beacon of light and found it in the backlash to the 1973 Roe v. Wade decision legalizing abortion.
Not that they always read the “good book” that way. Originally, fundamentalist Christians saw abortion as a “Catholic issue” and were largely indifferent—and in some cases favorable—to the Roe decision. In a statement that would mark him as an apostate today, W.A. Criswell, pastor of the First Baptist Church of Dallas, noted when the ruling came down: “I have always felt that it was only after a child was born and had a life separate from its mother that it became an individual person, and it has always, therefore, seemed to me that what is best for the mother and for the future should be allowed.” In 1974 and 1976, the Southern Baptist Convention reaffirmed its pre-Roe resolution citing rape, incest, fetal abnormality and emotional and physical health of the woman as justifications for terminating a pregnancy.
The success of anti-abortion candidates in a few 1978 elections spurred these same forces to grab onto opposition to abortion as a core tool to organize evangelical Christians. When Carter refused to endorse a constitutional amendment banning abortion, they threw their weight behind Ronald Reagan in the 1980 presidential campaign. The Reagan years saw a marked advancement of religion forced into public life. Among other things, there were efforts to restore school prayer, stop the teaching of evolution in favor of biblical “creationism” and ban books from school libraries on religious grounds, including the “heathen” Goldilocks and the Three Bears.
It was under Reagan that the Republican Party solidified its hold among white Southern voters in particular. Writing in “Texas: The Southern Baptists in Power” (New York Review of Books, 9 October), Thomas Powers describes Reagan as “joining the Baptists to reject pretty much everything ‘modern’ to emerge in American culture and society over the last two centuries. The three that most disturbed the Bible Belt South were the end of slavery, the ‘theory’ of evolution that cast doubt on the literal truth of the Bible, and the emancipation of women.” This was the atmosphere in which the reactionaries behind the Hobby Lobby litigation cut their teeth dressing racist reaction in religious garb. Three decades later, the hymn remains the same.
Bless Me, I’m a Liberal
The growth of religion in political life was the context behind the 1993 Religious Freedom Restoration Act (RFRA), upon which the Hobby Lobby decision was based. That law was initiated by Democrat Chuck Schumer—then a New York Congressman and today a leading light in the Senate—and sponsored in the Senate by liberal icon Ted Kennedy and signed into law by Bill Clinton. Only three Senators voted against the bill, one of them North Carolina segregationist Senator Jesse Helms, who feared it would provide some rights to prisoners.
The RFRA was purportedly adopted in response to the 1990 Supreme Court decision Employment Division v. Smith, which upheld the denial of unemployment benefits to two Native American counselors at a drug rehab program who had been fired for using peyote as part of their religious practice. But defending the rights of a marginal and controversial religious sect was farthest from the minds of those who pushed and adopted this measure. Seven months before Clinton signed the bill, his Justice Department had launched a raid on the integrated Branch Davidian religious sect in Waco, Texas, killing some 80 devotees, many of them children.
Pandering to religious reaction was integrally linked to the political strategy of Clinton’s Democrats, who expressed contempt for black rights in order to win back racist white male voters who had fled to the Republicans after the adoption of the civil rights laws in the mid 1960s. Upon signing the RFRA, Clinton declared Americans to be a “people of faith” and complained that the family “has been under assault for 30 years.” The following year, Clinton pushed for a Constitutional amendment sanctifying school prayer.
Testifying in support of the proposed RFRA at a 1992 Senate hearing, American Civil Liberties Union president Nadine Strossen warned that the Smith decision “could force religion-sponsored hospitals to provide abortion or contraception services.” While Democrats who voted for the law now whine that the Hobby Lobby ruling was not the RFRA’s intent, Republican Senator Orrin Hatch, a cosponsor of the bill, exulted, “That’s why RFRA passed Congress overwhelmingly more than 20 years ago.”
One of Obama’s appointees to the Supreme Court, Justice Elena Kagan, voted against the Hobby Lobby ruling, but as a legal counsel to Clinton she sang a different tune. This was evident when she went to bat for a Chico, California, landlord named Evelyn Smith who had violated a state housing anti-discrimination law in 1994 by refusing to rent an apartment to an unmarried heterosexual couple because she thought they were living in sin. After Smith argued unsuccessfully before the California Supreme Court that the RFRA protected her right of refusal, a 1996 Kagan memo urged the Justice Department to support Smith’s appeal to the U.S. Supreme Court, denouncing the California court’s reasoning as “outrageous.”
Supreme Court of Injustice
For the Roberts court, the spring 2014 term was little more than business as usual. The Court had already upheld draconian anti-immigrant legislation on the state level, approved strip-searching of those arrested for merely violating fines, granted absolute immunity for government agents who perjure themselves during trial and castigated lower courts for too often granting habeas corpus petitions. This is easily the most reactionary Supreme Court since the body that issued the 1896 Plessy v. Ferguson decision upholding “separate but equal” segregation as the law of the land. But as reactionary as it is, the Roberts court has found itself to the left of the Obama administration on issues involving the Fourth Amendment proscription against unreasonable search and seizure. Thus, it has ruled against the government’s upholding of police reading the cell-phone contents of detained suspects without warrants and using GPS monitors to track moving vehicles.
Like today’s court, the Plessy court openly reveled in contempt for workers, blacks and women and proved itself adept at twisting the clear letter and professed purpose of laws they are called on to “interpret.” A case in point was the 1890 Sherman Anti-Trust Act, which was purportedly adopted to break up the monopolies of the Gilded Age. The law’s sponsors swore that union organizing would not be considered the “restraint of trade” that the bill targeted. The Supreme Court would have none of it, upholding that law in declaring the 1894 national railroad strike an unlawful “restraint of trade” and affirming the conviction of union leader Eugene V. Debs, who was imprisoned for defying a strikebreaking injunction.
In 1895, the same court ruled that the Sherman Act could not be applied against the E.C. Knight Co. sugar-refining monopoly. In the 1905 Lochner case, it struck down a New York City law limiting the working hours of bakers to no more than ten a day, and 60 a week, declaring this an “unnecessary and arbitrary interference with the right and liberty of the individual to contract.”
The context for the Plessy court was the rise of the U.S. as an industrial power, with a nascent union movement that needed to be suppressed, and its emergence on the international field as an imperialist country. Integral to these developments was the compacting of black people as a race-color caste following the defeat of post-Civil War Reconstruction. Today’s Roberts court was formed by the backlash to the social struggles of the 1960s and ’70s, determined to overturn gains from that period.
From its inception, the Supreme Court was designed to be a ruling-class protection against the masses, a bastion of conservatism, “an essential safeguard against the effects of the occasional ill humors in the society,” as Alexander Hamilton put it in the Federalist Papers. The founding fathers created “checks and balances” to insulate government from the “ill humors” of the unpredictable masses, with a powerful executive, the president, who nominates the high court with consent from that exclusive club called the Senate, now full of millionaires.
In the recent anti-union Harris v. Quinn decision, Roberts & Co. provided a clear example of how the vaunted “checks and balances” of American bourgeois democracy works. When the Supreme Court doesn’t like laws that favor unions or black people, it overturns them. The RFRA shows that when the legislature doesn’t like a Court decision, it passes a law to circumvent it. And the executive branch, led by the president, can just choose not to enforce either. In any case, the core of the state power remains armed bodies of men—the police, prison system and military—dedicated to defending the rule of the tiny class of capitalists against the many they exploit and oppress.
Those on the receiving end of capitalist reaction must understand that we are all in this together, underlining the importance of building a multiracial workers party that acts as a tribune of the people. Such a party would fight every manifestation of oppression as part of the struggle to smash the entire system of capitalist class rule and replace it with a government of the workers, whose labor produces the vast bulk of the wealth of society. This is the only road to sweeping away the ignorance, superstition, bigotry and racism that are synonymous with, and help maintain, bourgeois rule.