The United States is still a democratic republic, formally, but what that actually means in practice is increasingly in doubt — and the Hobby Lobby ruling, deeply disingenuous and sharply at odds with centuries of Anglo-American law, exemplifies how that formal reality is increasingly mocked in practice. It is a practice best described as neo-feudalism, taking power away from ordinary citizens, in all their pluralistic, idiosyncratic diversity, and handing it over to corporations and religious dictators in both the public and the private realm. The Supreme Court's actions are not taking place in a vacuum — though they are filling one: As Tea Party Republicans in the House increasingly bring democratic self-government to a halt, contracting the power of we the people to act as a cohesive self-governing whole, the Supreme Court's conservative majority shifts ever more everyday power into the hands of private dictatorships.
Hobby Lobby handed for-profit corporations religious rights for the first time in history — a radical break with all previous precedent, and yet a part of a recent pattern, as Norm Ornstein rightly pointed out:
[F]or the majority on the Roberts Court, through a series of rulings that favor corporations over labor or other interests, it is clear that corporations are king, superior to individual Americans—with all the special treatment in taxes and protection from legal liability that are unavailable to us individuals, and now all the extra benefits that come with individual citizenship. Call it the new Crony Capitalism.
The expansion of corporate power in Hobby Lobby has gotten too little attention, and I'll return to discuss this further below. But the advancement of theocracy — religious dictatorship — is even less clearly seen through the fog of right-wing propaganda about “religious liberty."
First, however, an important highlight of a neglected aspect of the Hobby Lobby case, the fact that Hobby Lobby's self-professed belief appeared out of nowhere just in time for them to file suit, as Stephanie Mencimer noted in March:
The company admits in its complaint that until it considered filing the suit in 2012, its generous health insurance plan actually covered Plan B and Ella (though not IUDs). The burden of this coverage was apparently so insignificant that God, and Hobby Lobby executives, never noticed it until the mandate became a political issue.
In short, Hobby Lobby's “deeply held beliefs” claims are transparently bogus — as well as being scientifically invalid, since none of the methods involved are abortifacients, as Hobby Lobby claims. These would not matter if they only guided individual private conduct; that's precisely what religious freedom actually means. You're free to be a religious hypocrite, because letting someone else judge your sincerity can lead too easily to real religious tyranny. But when you're already in a position to tyrannize others — as Hobby Lobby is — that's a whole different ballgame. The tyrant's freedom is everyone else's slavery.
Historically, theocracy meant top-down religiously sanctioned dictatorship, exemplified in Western history by the divine right of kings philosophy. No one reads John Locke's "First Treatise on Civil Government" anymore, because it is a refutation of the divine right of kings — one might as well read a refutation of four element theory in physics class. Locke's "Second Treatise" provided a sharply contrasted legitimate foundation for civil government — the social contract and the consent of the governed. This is the air we breathe, and have been breathing ever since America was born.
And yet, theocracy and democracy are not two utterly distinct phenomena. Theocracy can well hold sway inside the family, for example, while the larger society retains its democratic form. More to the point, one stream of extreme Christian theocratic thinking — the dominion theology of the New Apostolic Reformation — has no problem (initially, at least) assimilating its goals of a theocratic government with the existing two-party electoral system. As researcher Rachel Tabachnick explains:
Instead of escaping the earth (in the Rapture)* prior to the turmoil of the end times, they [the NAR] teach that believers will defeat evil by taking dominion, or control, over all sectors of society and government, resulting in mass conversions to their brand of Charismatic evangelicalism and a Christian utopia or "Kingdom" on earth.
In early 2010, a leading NAR figure, Edgardo Silvoso, founder of International Transformation Network, which played a major role in promoting and passing Uganda's anti-gay legislation, confidently said, “It doesn't matter if the Republican or the Democratic candidate wins the governorship [of Hawaii]. Either one is already in the kingdom." It didn't turn out that way, because Neil Abercrombie, Hawaii's popular long-term U.S. representative, defeated both the NAR-supported candidates — one in the Democratic primary, the other in the general election. Still, Silvoso's vision might have come true, there could have been a contested two-party election in which both candidates were Christian dominionists — and most in the media (and thereby the public) wouldn't even have known what was going on.
Sarah Palin was the NAR's first full-throated state governor (revealing videos here), but Rick Perry has strong NAR connections as well — the religious kickoff to his 2012 presidential campaign was entirely an NAR-run event. But the point here is a broader one: The dividing line between theocracy and a democratic republic is not nearly as sharp as most might suppose, in fact, there may not actually be such a line, only a zone of blurriness for everything involved.
While the NAR represents an international evangelical grass-roots force of remarkable power for how little press attention it has gained, the theocratic push from above in America — duplicity framed in terms of “religious liberty” — comes from a Catholic/Protestant alliance forged in antiabortion political battles of the past 30-plus years, which is also undercovered and poorly understood in the mainstream corporate media, despite being grounded in a phalanx of powerful organizations, from the high-profile Family Research Council and the United States Conference of Catholic Bishops, through more specialized think tanks and legal advocacy organizations, such as the Becket Fund and the Alliance Defending Freedom. A useful reference is "Redefining Religious Liberty: The Covert Campaign Against Civil Rights" by Jay Michaelson, published by Political Research Associates in March 2013. In it, he writes:
While the religious liberty debate is a growing front in the ongoing culture wars, it is actually an old argument repurposed for a new context. In the postwar era, the Christian Right defended racial segregation, school prayer, public religious displays, and other religious practices that infringed on the liberties of others by claiming that restrictions on such public acts infringed upon their religious liberty. Then as now, the Christian Right turned antidiscrimination arguments on their heads: instead of African Americans being discriminated against by segregated Christian universities, the universities were being discriminated against by not being allowed to exclude them; instead of public prayers oppressing religious minorities, Christians are being oppressed by not being able to offer them.
In the “religious liberty” framework, the Christian Right attacks access to contraception, access to abortion, same-sex marriage, and antidiscrimination laws—not on moral grounds (e.g., that contraception is morally wrong or that LGBTQ rights violate “family values”) but because they allegedly impinge upon the religious freedoms of others (e.g., by forcing employers to violate their religion by providing contraception coverage)....
In fact, there is not a single “religious liberty” claim that does not involve abridging someone else’s rights.
As I've already indicated, Hobby Lobby's “deeply held beliefs” claims are transparently bogus, but this need not always be the case. What is the case is that the inversion Michaelson describes — that of turning anti-discrimination arguments on their heads — both derives from and contributes to states of confusion in which all manner of bogus claims may flourish. As I noted above, there are legitimate reasons why the content of religious beliefs should not be scrutinized when considering questions of free exercise. But when religion is being imposed upon others, the presumptions ought to be reversed; we ought to be extremely reluctant to allow anyone to impose their religious beliefs on anyone else, no matter how light or innocent that imposition might be claimed to be. The views themselves as well as the manner they are imposed on others ought to be scrutinized as rigorously as possible. Don't want your religious beliefs questioned? Then don't impose them on others. When push comes to shove, real religious freedom can be just as simple as that.
And the phony “religious freedom” crowd knows it, which helps explain why outright lies repeatedly slip into their arguments, as Michaelson's report makes clear. For example, anti-gay “religious freedom” advocates routinely repeat the lie that legalizing same-sex marriage means forcing churches to perform same-sex wedding ceremonies against their will — a flat-out lie.
Legalized civil divorce did not force the Catholic Church to marry divorced individuals, and legalized same-sex marriage would not force them to marry gay individuals, either. Institutional religious practice is almost entirely insulated from civil law. What does change are the rules applying to society at large. Michaelson explains:
Typically, there are five tiers of actors:
1. Churches, clergy, and religious institutions
2. Religious organizations
3. Religiously affiliated organizations
4. Religiously owned businesses
5. Religious individuals
The law treats these tiers differently: churches are rarely required to obey antidiscrimination laws, for example, but religious organizations may be, and religious-owned businesses are. Conservative “religious liberty” rhetoric deliberately misstates harms upward, and tactically expands exemptions downward. On the one side, no clergy will ever have to solemnize any marriage against her/his beliefs, yet restrictions on tier 4 or 5 individuals are cynically extended by conservative messaging to tier 1.
Michaelson then addresses the context of the Hobby Lobby case:
On the other side, conservative “religious liberty” advocates are clearly pursuing a staged plan to migrate extensions downward. In the current HHS benefit battle, for example, the Obama administration first exempted tiers 1 and 2, and then, in February 2013, exempted tier 3. Yet still the Becket Fund has objected that “millions of Americans”—i.e., tiers 4 and 5—are still unprotected.
And this is precisely the logic that the Hobby Lobby decision pursued. The Obama administration's exemptions of Tiers 1 and 2 were not seen as signs of respect for religious liberty, in line with traditional practice, nor was its further exemption of Tier 3 seen as going the extra mile in a spirit of conciliation. Instead, the accommodation made for Tier 3 was used by Justice Alito to argue for similar treatment for Tier 4. The end result is that women in more than half the nation's workforce can now be deprived by their employers of their most basic reproductive rights, involving birth control, not abortion.
But that's just one side of the story. There's also the economic, corporate power side, where things are a bit more complicated. I quoted above from Norm Ornstein, making the point that Hobby Lobby was part of a broader pattern of shifting power into corporate hands. But it's striking that the U.S. Chamber of Commerce did not weigh in on the Hobby Lobby Case — it produced no amicus brief. In fact, as noted by David H. Gans of the Constitutional Accountability Center, “the only noteworthy corporate voices to weigh in — the U.S. Women’s Chamber of Commerce and the National Gay and Lesbian Chamber of Commerce — actually came down against them [Hobby Lobby and its supporters].” Gans also notes another brief from dozens of corporate and criminal law professors, “who argued that Hobby Lobby’s argument would eviscerate the fabric of corporate law, undercutting the corporate veil that protects owners and shareholders from liability for the actions of the corporation.” The brief itself begins laying out its argument thus:
Hobby Lobby and Conestoga each asserts that the religious values of its present controlling shareholders should pass through to the corporation itself. This Court should reject any such "values pass-through" concept. To do otherwise would run contrary to established principles of corporate law.
The essence of a corporation is its "separateness" from its shareholders. It is a distinct legal entity, with its own rights and obligations, different from the rights and obligations of its shareholders. This Court has repeatedly recognized this separateness.
This is yet another indication of how radically the Hobby Lobby decision departs from the existing fabric of Anglo-American law. And yet, there are clearly some in the corporate world who welcome this development, and it's surely no accident that the same five justices produced both Hobby Lobby and Citizens United. So what's going on here?
The best answer I know of comes from political scientist Corey Robin, and it involves looking much deeper than the framework of corporate law. The day the decision came down, Robin published “A Reader’s Guide to Hobby Lobby,” listing what he called “a few posts I’ve written over the years that should help put the Supreme Court’s decision in theoretical and historical perspective.” They're all well worth reading, but I want to focus on just one of them, the first of two that Robin described thus:
2. Second, two posts on free-market types and birth control, how even the most libertarian-ish free-wheeler seeks to control women’s bodies: Love For Sale: Birth Control from Marx to Mises and Probing Tyler Cowen: When Libertarians Get Medieval on Your Vagina.
In “Love for Sale,” Robin discusses Ludwig von Mises' classic 1922 text "Socialism," and some contemporary discussions concerning it, particularly its fourth chapter, “The Social Order and the Family.” Here is where Robin gets to the heart of the matter:
The real reason Mises’s arguments about women are so relevant, it seems to me, is that in the course of making them he reveals something larger about the libertarian worldview: libertarianism is not about liberty at all, or at least not about liberty for everyone. In fact, it’s the opposite.
Here’s Mises describing the socialist program of “free love”:
Free love is the socialists’ radical solution for sexual problems. The socialistic society abolishes the economic dependence of woman which results from the fact that woman is dependent on the income of her husband. Man and woman have the same economic rights and the same duties, as far as motherhood does not demand special consideration for the women. Public funds provide for the maintenance and education of the children, which are no longer the affairs of the parents but of society. Thus the relations between the sexes are no longer influenced by social and economic conditions….The family disappears and society is confronted with separate individuals only. Choice in love becomes completely free.
Sounds like a libertarian paradise, right? Society is dissolved into atomistic individuals, obstacles to our free choices are removed, everyone has the same rights and duties. But Mises is not celebrating this ideal; he’s criticizing it. Not because it makes people unfree but because it makes people — specifically, women — free. The problem with liberating women from the constraints of “social and economic conditions” is that … women are liberated from the constraints of social and economic conditions.
If you want to know why libertarians reflexively embrace the National Rifle Association's vision of freedom, but not Planned Parenthood's (contrasting visions I discussed here), you need look no further. This passage also helps explain why there's at least a germ of historical sense in the otherwise ridiculous Tea Party accusation that Obama is a “socialist”! By using government to empower women to make their own reproductive choices — not just in theory, but for real — Obamacare's reproductive healthcare mandate really is acting in the socialist spirit as Mises described it, however market-based the mechanisms involved may be.
But it's worth lingering a bit further with the socialist vision as Mises describes it, because it is so intimately bound up in what a functioning democratic republic actually does, or at least has the potential to do, when, for example, we take the Constitution's general welfare clause seriously. What the socialists want, Mises argues, is to eliminate all manner of “natural inequalities”. This would, ironically, make everyone—not just privileged, straight, white males of means — into classic libertarian subjects, exercising their own, individual, unconstrained and uncoerced free choice. And this is the very last thing that libertarians actually want.
This helps explain why, for example, today's Tea Party Republicans reject unemployment insurance as “socialist” — if someone out of work has any freedom at all to hold out for a job that will cover their mortgage, say, that's socialism as Mises would describe it. And he has a point: socialism really is just another word for collectively removing the hidden and semi-hidden forms of coercion that otherwise shape and control our everyday lives. That's why public education is socialist, too — and why Democratic politicians as well as Republicans are so eager to destroy it nowadays. But none of these other examples is quite as visceral or far-reaching as that of giving women reproductive autonomy equal to that of men.
This, then, is the bottom line: Conservatives (including libertarians) stand for the preservation and reinforcement (if necessary) of purportedly “natural” inequalities, which automatically structure all of society into overlapping forms of dominance and submission, in which the vast majority of people are inherently unfree “by nature.” Any collective action taken to free people from such dependent, powerless living conditions is anathema to them. Democracy itself is anathema to them. And Hobby Lobby is just the latest signal that they are firmly in charge.
Do they contradict themselves? Of course! So what? Do facts or logic matter anymore? Don't be ridiculous! Dictatorship means never having to say you're sorry — much less even a teensy bit wrong. The damages done to the structure and logic of corporate law? Irrelevant!
At the beginning, I wrote, “The United States is still a democratic republic, formally, but what that actually means in practice is increasingly in doubt.” This doubt can simply be summarized in the fact that any action to promote the general welfare will be automatically blocked and denounced as “socialism” by Tea Party Republicans in the House, while at the same time, the 5-4 conservative majority in the Supreme Court rewrites decades or centuries of precedent to further empower the most powerful elements in our society, to the ever-deepening detriment of the whole.