Scalia's major screw-up: How SCOTUS just gave liberals a huge gift

With an otherwise awful Hobby Lobby ruling, right-wing judges just said I don't have to pay for warfare! Here's why

Published July 14, 2014 8:45PM (EDT)

Antonin Scalia              (Reuters/Kevin Lamarque)
Antonin Scalia (Reuters/Kevin Lamarque)

Before a recent visit by Justice Scalia to Wesleyan University, I (a lowly research fellow) gained an invitation to a banquet in his honor by employing a typical Quaker mix of idealism, stubbornness and low cunning. Once there, I thanked the eminent jurist for his liberal ruling in Crawford v. Washington, concerning the right to confront witnesses in criminal proceedings. This remark drew from him the quip that he ought to be a pinup in every public defender’s office in the nation, because sometimes he was forced by clearly established constitutional principles to rule in favor of people he couldn’t stand.

With this in mind, I’m celebrating him for yet another socio-political gift to progressives and suggesting that he doesn’t need to wear a thong — a modest bathing costume of 1910 vintage will do — in the poster religious pacifists like myself will want now that he and his brethren have ruled for Hobby Lobby et al., to the effect that private persons/corporations do not have to fund activities that violate their faith — such as the use of an IUD by an employee who may not even share that faith.

The upshot of the ruling is that Hobby Lobby and other businesses with conservative religious owners do not need to pay for what the Affordable Care Act mandates as full coverage for family planning. The public interest in affordable and accessible healthcare is not compelling enough to override the private belief that contraceptive methods including (but apparently not limited to) the IUD and the morning-after pill are murder. Well, I’m a pacifist, and I say that warfare is murder, and I don’t want to pay for it; and in recent decades the public interest in my paying for it hardly looks compelling.

Let’s go back to 2012, when the Supreme Court ruled that the Affordable Care Act’s mandate for the purchase of insurance was constitutional as a tax, to fund the public good of healthcare. The issue necessarily now shifts to whether an individual or a privately held company has to pay a tax for anything religiously abhorrent that is less essential, or only as essential, to the common good as women’s ability to avoid unwanted pregnancies, including from rape.

My husband, Tom, and I have been dancing gleefully with our Corgi Bessie in our modest home every evening since the Hobby Lobby ruling, because it’s clear that the conservative majority of justices has written itself into a corner in which it cannot refuse religious exemptions from selected tax obligations. The same preponderance of Supremes will have no way out of ruling, for example, that I and fellow Quakers (plus the Amish, Mennonites and others) do not have to pay the roughly 20 percent of our taxes that goes toward supporting the U.S. military. I’m firing up little Bessie with talk of her own backyard goat herd, and my husband (not a Quaker) with the promise of a 1992 Jaguar and a weekend at the Saratoga racetrack once my tax savings come through.

Why wouldn’t they? The conscientious objection of religious pacifists to supporting the military goes back for centuries. Just to instance my own sect, the Quaker Peace Testimony (citing the New Testament) dates from 1660, and over the years many Quakers were persecuted for their antiwar witness. George Washington had a passel of them confined in punishing conditions as draft refusers during the French and Indian War, and he admired their fortitude.

Today, some Quakers send the government only the non-military portion of their taxes owed. They attach letters explaining why, and suffer crippling monetary penalties, confiscations from their savings accounts, and sometimes the loss of their homes.

There’s nothing remotely like this basis in conservative Christians’ pleas that they have a religious objection to voluntary abortion (or birth control somehow resembling it) — an issue never even mentioned in the Bible, and manifesting during recent years mainly (it could be argued) as a political wedge and the cat-o’-nine-tails of anti-feminist backlash.

I look forward with mirth to the Supreme Court’s deliberations on whether the portion of military spending funded by the taxes of religious pacifists represents a compelling public interest. Historians of our era — Justice Scalia is especially keen to consult history when backing up his rulings — must already be revving up to declare that it would have benefited our nation hugely had there not been as many military resources available for our government to splash out with. Even more to Scalia’s taste as evidence, a delegate at the 1787 Constitutional Convention declared that a standing army was like an erect penis, “a dangerous temptation to foreign adventure.” Crude analogy, but it’s turned out to be no joke.

I foretell many blessings for our beloved homeland from the coming new dispensation. The arrangements for going to war will be more like a female Hobby Lobby employee’s having to shift for herself if her circumstances, her doctor and her conscience argue for an IUD. (The court has now backed up Wheaton College’s refusal even to certify in a letter its objection to paying for contraceptive coverage, though Wheaton refuses for the very reason that the federal government intended such certification to allow straightforward alternative access to birth control. The court seems to be establishing the right of a religious employer to pursue an employee outside the place of employment and make it as hard as possible for her to obtain standard healthcare he doesn’t want her to have.)

As things work in Washington these days, certain individuals, weighing the options and deciding for what they personally believe is right, may set out to invade and occupy a foreign land, regardless of whether it poses any threat to our country or our allies — and they make us all pay through the nose for this choice, even those of us who believe that war is murder.

They already can’t force individuals to be directly involved, pulling triggers and lobbing grenades; there’s no longer a draft, and even when there was a draft, conscientious objection was allowed. Suppose funding a military deployment entailed a bureaucratic labyrinth so nasty (I’m thinking six or eight different phone trees to go through just to identify the person authorized to unlock the House door for a vote) that proponents would conclude that, since they can’t pay for the undertaking out of their own pockets, they will have to drop the idea.

I think this would be great. I bet the other Quakers in Middletown, Connecticut, Meeting of the Religious Society of Friends would think so too. Bessie is wagging her butt (she doesn’t have a tail) in anticipation of a better world, with her own miniature water-slide in it. And Tom (again, not a Quaker) is already on the Brooks Brothers website, shopping away.

By Sarah Ruden

Sarah Ruden is an essayist and translator who worked as a university lecturer, journalist, and volunteer teacher in the new South Africa. Her latest book, "Paul Among the People" (Pantheon, 2010), is an exploration of the Apostle Paul's ethics.

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