Ruth Bader Ginsburg, Discrimination, and the First Amendment

The US Supreme Court recently upheld Hobby Lobby’s First Amendment guarantee of religious liberty. The crafts store chain had charged that the Affordable Care Act required them to violate their faith by requiring them to provide insurance to their employees covering birth control and anti-abortive pills.

However, many complained that this decision provided Hobby Lobby and others with a license to discriminate. In an interview with Katie Couric, Supreme Court Justice Ruth Bader Ginsburg lamented:

• "I certainly respect the belief of the Hobby Lobby owners. On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women."

Ginsburg didn’t explicitly claim that the decision granted employers the right to discriminate. However, she claimed something more extreme - that the decision granted Hobby Lobby the “right to foist that belief on… women.” Does it?

The Hobby Lobby (HL) owners have a constitutional right to live according to their religious faith. While some have claimed that such guarantees do not apply to businesses, others have pointed out that if these guarantees apply only to our private lives, they are useless, meaningless, and the First Amendment is just a waste of ink.

It is unclear how Hobby Lobby’s rights “foist [their] belief… on women” any more than the Affordable Care Act does so. Rather, isn’t Ginsburg foisting her beliefs on the entire nation! By simply not providing insurance that would cover birth control, it is hard to see how HL is coercing anyone to believe in a certain way.

All laws discriminate. They either prescribe or proscribe certain behaviors. If this is so, then the more appropriate question is this – “Which laws discriminate in a needful way and which don’t.”  Is coercing employers to provide birth control insurance absolutely needful?”

We respect business owners’ rights to discriminate all the time. Many stores have signs reading, “No shoes or shirt; no service!” We respect that and don’t haul the shop-owner into court for discriminating. Why the double-standard when it comes to Christians refusing to partake in what they regard as sinful!

Hobby Lobby has not been given the right to discriminate. Women never had the right to require these drugs from their employers. HL had withdrawn no privilege. Following Ginsburg’s logic, all employers had formerly exercised discrimination – the foisting of their beliefs by not providing for birth control. This is ludicrous. Besides, HL has not been given the right to forbid their employees from purchasing such drugs. If this had been the case, Ginsburg would have had a basis for her argument. Ironically, it is Ginsburg who discriminates against HL!

A government that wants to win the allegiance of the governed must provide guarantees against unreasonable encroachments. The USA had thrived by virtue of the belief that government should respect freedom as long as it did not seriously impinge upon the public good. The historian, Edwin Scott Gaustad, quotes perhaps our most un-Christian Father to this effect:

• “Almighty God hath made the mind free.” It follows therefrom that mankind should do all that it can to keep minds unshackled and un-coerced. Let us consider, Jefferson noted, that if an all wise and powerful God restrained himself from coercing either the bodies or the minds of men and women, how utterly absurd it must be for “fallible and uninspired men” to arrogate to themselves the right to exercise “dominion over the faith of others…Be it enacted,” therefore, “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” One will suffer in no way for his or her religious opinions; on the contrary, all persons “shall be free to profess, and by argument to maintain, their opinions in matters of religion.” And whatever their opinions, this will in no way affect their citizenship or their rights. (A Religious History of America, 119).

Ginsburg’s disdain for the free exercise of religion is at variance with the sentiments expressed by Jefferson. For almost two centuries, our nation honored these very sentiments. For this reason, the Supreme Court was reluctant to enforce conformity, even when it would come at a great cost to the nation. It deemed that a dissenter of religious conscience could opt from fighting for his nation. The Court and the nation rightly understood that compelling conformity in non-essential areas would breed alienation, contempt, and disdain for authority. In contrast to this, the Affordable Care Act would have compelled people of conscience to violate their conscience.

Must our freedom of religion be safeguarded? Is it essential to the well-being of this nation? Clearly, Justice Ginsburg doesn’t think so. However, in his 1796 Farewell Address, the beloved George Washington reiterated this broadly accepted sentiment:

• Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars…The mere politician, equally with the pious man, ought to respect and cherish them…reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” (Thomas S. Kidd, God of Liberty, 112)

According to Washington and the vast majority of the Founding Fathers, morality could not prevail without the belief in God. If this is so, should not our freedom of religion be safeguarded?