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theHandpuppet

(19,964 posts)
Fri Jul 11, 2014, 09:28 AM Jul 2014

The Hobby Lobby shock: it's high time for an equal rights amendment

http://www.theguardian.com/sustainable-business/2014/jul/11/hobby-lobby-birth-control-contraception-supreme-court-sexism-constitution

The Hobby Lobby shock: it's high time for an equal rights amendment
The supreme court's decision on birth control provisions in favor of religious corporate owners shows the constitution still does not protect women's rights – which were overdue in the 1970s
By Liz Holtzman and Jessica Neuwirth
theguardian.com, Friday 11 July 2014

(excerpts)
In her dissent, Justice Ruth Bader Ginsburg — joined by Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer — noted that the price of contraceptives discourages their use by many women. She pointed out that an IUD costs the equivalent of a month’s pay for women working full time at the minimum wage. According to a range of different studies, women of childbearing age spend between 40% and 69% more for out-of-pocket health costs than men of the same age. In truth, the Hobby Lobby decision will cause much more damage to women — 51% of the population — than a contrary result would have caused to religious freedom. 

The supreme court could not have reached its decision if we had had an equal rights amendment in the US constitution. Depriving women of coverage for health services they need is sex discrimination, plain and simple. Also, the religious protections the court relied on were statutory, and a statute cannot override a constitutional provision. An equal rights amendment would have forced the court to consider thoroughly the harm to women of depriving them of contraception, and to recognize women’s fundamental right to freedom from sex discrimination. Unsurprisingly, the term “sex discrimination” appears nowhere in the court’s decision.

Although the constitution should be read to protect women against discrimination – women, after all, are “persons” entitled to equal protection under the 14th Amendment – the standard for protection against sex discrimination is not as stringent as it should be. And for some members of the court, women don’t seem to count as constitutional “persons,” even though corporations do. Justice Scalia, for example, has said: “Certainly the constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't.”...

...Although the 1972 effort to adopt the equal rights amendment failed, US Representative Carolyn Maloney has introduced a new equal rights amendment that would finally add the word “women” into the constitution. And Senator Ben Cardin and Representative Jackie Speier have introduced legislation to resuscitate the 1972 proposal.

Those who think we don’t need the new amendment may want to think again in light of the Hobby Lobby and the Wheaton College decisions. For those who think we can’t get the equal rights amendment, ask why not. It’s high time for it — simple justice, long overdue....

http://www.theguardian.com/sustainable-business/2014/jul/11/hobby-lobby-birth-control-contraception-supreme-court-sexism-constitution

61 replies = new reply since forum marked as read
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The Hobby Lobby shock: it's high time for an equal rights amendment (Original Post) theHandpuppet Jul 2014 OP
K & R !!! WillyT Jul 2014 #1
K&R !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! n/t RKP5637 Jul 2014 #2
You're so right. Baitball Blogger Jul 2014 #3
Perhaps if we'd had the ERA years ago theHandpuppet Jul 2014 #4
Time to ressurect the comments made by the naysayers. Baitball Blogger Jul 2014 #5
Very well said! theHandpuppet Jul 2014 #6
There was also a lot of gaybaiting among the arguments against it... JHB Jul 2014 #9
I definitely see the need to ressurrect the movement. Baitball Blogger Jul 2014 #11
those of us who have been around remember being told that "the courts will protect your rights" niyad Jul 2014 #58
We need the film clip. Baitball Blogger Jul 2014 #59
First of all it was not a shock yeoman6987 Jul 2014 #51
Nods - it makes sense to me. el_bryanto Jul 2014 #7
Tea party, for one thing theHandpuppet Jul 2014 #8
LONG PAST TIME. RISE UP> GOTV 2014 Tuesday Afternoon Jul 2014 #10
I marched for in 72 Tribalceltic Jul 2014 #12
k&r Starry Messenger Jul 2014 #13
kick. nt littlemissmartypants Jul 2014 #14
Kicketty. littlemissmartypants Jul 2014 #15
Kick. Thank you. nt littlemissmartypants Jul 2014 #16
Thank you, Miss SmartyP theHandpuppet Jul 2014 #17
You are welcome, love. nt littlemissmartypants Jul 2014 #22
The Hon. Shirley Chisholm's address to Congress, 1969 theHandpuppet Jul 2014 #18
My mother made me, yes I feared her... littlemissmartypants Jul 2014 #25
You are on fire tonight! And I loved her! So many great voices for equality then! freshwest Jul 2014 #47
Good idea - I'd forgotten we never got that through. toby jo Jul 2014 #19
Long past the time etherealtruth Jul 2014 #20
Martha Griffiths (D-MI) and the Equal Rights Amendment theHandpuppet Jul 2014 #21
You are leading the way.... ReRe Jul 2014 #29
Recent events show that we need this as much as we always did. Tanuki Jul 2014 #23
The Equal Rights Amendment website: History and Resource Guide theHandpuppet Jul 2014 #24
Needed it 40 years ago Gormy Cuss Jul 2014 #26
DURec leftstreet Jul 2014 #27
K&R ReRe Jul 2014 #28
Which one is that, ReRe? theHandpuppet Jul 2014 #31
I'll try to find it and come back and post it. n/t ReRe Jul 2014 #33
Past time... daleanime Jul 2014 #30
Here's a form that can be printed out theHandpuppet Jul 2014 #32
Your link doesn't work for me. Jim Lane Jul 2014 #34
Try this one theHandpuppet Jul 2014 #36
Yes, that works, thank you! (n/t) Jim Lane Jul 2014 #38
Appreciate you getting back to me so soon. theHandpuppet Jul 2014 #41
You wrote.... theHandpuppet Jul 2014 #43
Clarifying Jim Lane Jul 2014 #45
The problem as I understand it... theHandpuppet Jul 2014 #48
I completely agree with you Jim Lane Jul 2014 #49
Thanks much for all the information theHandpuppet Jul 2014 #50
Legally, it's easy enough, although I can't see the House going along with it unless control changes Jim Lane Jul 2014 #54
Follow-up: The linked article doesn't answer my question. Jim Lane Jul 2014 #46
Kicked and recommended. Uncle Joe Jul 2014 #35
You're very welcome theHandpuppet Jul 2014 #37
I believe it will, this will burn the Republicans in November. n/t Uncle Joe Jul 2014 #39
Women's votes have turned more than one state blue theHandpuppet Jul 2014 #42
Way past time! K&R! neverforget Jul 2014 #40
Way past time but mealy mouthed weaseling won't carry the day. TheKentuckian Jul 2014 #44
K & R! historylovr Jul 2014 #52
K&R ismnotwasm Jul 2014 #53
k and r for this extremely important information. thanks for posting. niyad Jul 2014 #55
You're very welcome theHandpuppet Jul 2014 #56
you are not a dolt--legalese is an arcane language, designed to obfuscate and bewilder the niyad Jul 2014 #57
I'm so tired of people fighting for their rights. Fairness should be clear to everyone. BlueJazz Jul 2014 #60
. . . niyad Jul 2014 #61

theHandpuppet

(19,964 posts)
4. Perhaps if we'd had the ERA years ago
Fri Jul 11, 2014, 10:03 AM
Jul 2014

This latest travesty handed down by the SC would never have happened.

I hope this will be a key campaign issue in the upcoming election -- women will be watching!

Baitball Blogger

(46,684 posts)
5. Time to ressurect the comments made by the naysayers.
Fri Jul 11, 2014, 10:09 AM
Jul 2014

I remember how we were laughed at for supporting the ERA. They claimed it was not necessary. Redundant wordage, I believe is how they put it.

It's always worth the effort to vindicate those who fought the battle and lost because they were ahead of their times.

JHB

(37,157 posts)
9. There was also a lot of gaybaiting among the arguments against it...
Fri Jul 11, 2014, 10:22 AM
Jul 2014

...in order to paint its activists as "hairy lesbians" and use knee-jerk homophobia to divide other potential supporters.

Been a lot of change in the landscape on that front as well.

Baitball Blogger

(46,684 posts)
11. I definitely see the need to ressurrect the movement.
Fri Jul 11, 2014, 10:28 AM
Jul 2014

Times have changed enough to fight against the ignorance that stopped it the first time around.

niyad

(113,086 posts)
58. those of us who have been around remember being told that "the courts will protect your rights"
Mon Jul 14, 2014, 10:13 PM
Jul 2014

most of us did not believe that nonsense even then.

 

yeoman6987

(14,449 posts)
51. First of all it was not a shock
Sat Jul 12, 2014, 12:47 PM
Jul 2014

most knew they were going to vote for Holly Lobby because of the mandate on four pills. However, even more difficult to have is an ERA. The best time to do this was in 2009 when we had a Democratic everything. Kinda difficult to pass an amendment on ERA with the House we have and the majority of state legislators being Republican. Now should we have it? Of course. Will we? No. We should have been asking for it back when President Obama had the whole political structure.

el_bryanto

(11,804 posts)
7. Nods - it makes sense to me.
Fri Jul 11, 2014, 10:12 AM
Jul 2014

I don't know why it seems less likely politically now than in the 80s - but it is long past time.

Bryant

theHandpuppet

(19,964 posts)
8. Tea party, for one thing
Fri Jul 11, 2014, 10:21 AM
Jul 2014

This SC decision shouldn't have come as that much of a surprise to many of us -- there has been a gradual erosion of women's rights for decades now, focused primarily on reproductive rights.

Tribalceltic

(1,000 posts)
12. I marched for in 72
Fri Jul 11, 2014, 10:56 AM
Jul 2014

And I'll march again, although a little bit slower and with a cane this time.

I remember saying "My mother is a thousand times better than you, who are you to claim to be better." That usually slowed them down

theHandpuppet

(19,964 posts)
17. Thank you, Miss SmartyP
Fri Jul 11, 2014, 11:01 AM
Jul 2014

Let's see just how many of our fellow Dems on DU support the ERA, shall we? We should learn a lot over the next day or so.

theHandpuppet

(19,964 posts)
18. The Hon. Shirley Chisholm's address to Congress, 1969
Fri Jul 11, 2014, 11:21 AM
Jul 2014

E Q U A L R I G H T S F O R W O M E N
HON. SHIRLEY CHISHOLM
of New York
In the House of Representatives, May 21, 1969

Mrs. CHISHOLM. Mr. Speaker, when a young woman graduates from college and starts looking for a job, she is likely to have a frustrating and even demeaning experience ahead of her. If she walks into an office for an interview, the first question she will be asked is, "Do you type?''

There is a calculated system of prejudice that lies unspoken behind that question. Why is it acceptable for women to be secretaries, librarians, and teachers, but totally unacceptable for them to be managers, administrators, doctors, lawyers, and Members of Congress.

The unspoken assumption is that women are different. They do not have executive ability orderly minds, stability, leadership skills, and they are too emotional.

It has been observed before, that society for a long time, discriminated against another minority, the blacks, on the same basis - that they were different and inferior. The happy little homemaker and the contented "old darkey" on the plantation were both produced by prejudice.

As a black person, I am no stranger to race prejudice. But the truth is that in the political world I have been far oftener discriminated against because I am a woman than because I am black.

Prejudice against blacks is becoming unacceptable although it will take years to eliminate it. But it is doomed because, slowly, white America is beginning to admit that it exists. Prejudice against women is still acceptable. There is very little understanding yet of the immorality involved in double pay scales and the classification of most of the better jobs as "for men only."

More than half of the population of the United States is female. But women occupy only 2 percent of the managerial positions. They have not even reached the level of tokenism yet No women sit on the AFL-CIO council or Supreme Court There have been only two women who have held Cabinet rank, and at present there are none. Only two women now hold ambassadorial rank in the diplomatic corps. In Congress, we are down to one Senator and 10 Representatives.

Considering that there are about 3 1/2 million more women in the United States than men, this situation is outrageous.

It is true that part of the problem has been that women have not been aggressive in demanding their rights. This was also true of the black population for many years. They submitted to oppression and even cooperated with it. Women have done the same thing. But now there is an awareness of this situation particularly among the younger segment of the population.

As in the field of equal rights for blacks, Spanish-Americans, the Indians, and other groups, laws will not change such deep-seated problems overnight But they can be used to provide protection for those who are most abused, and to begin the process of evolutionary change by compelling the insensitive majority to reexamine it's unconscious attitudes.

It is for this reason that I wish to introduce today a proposal that has been before every Congress for the last 40 years and that sooner or later must become part of the basic law of the land -- the equal rights amendment.

Let me note and try to refute two of the commonest arguments that are offered against this amendment. One is that women are already protected under the law and do not need legislation. Existing laws are not adequate to secure equal rights for women. Sufficient proof of this is the concentration of women in lower paying, menial, unrewarding jobs and their incredible scarcity in the upper level jobs. If women are already equal, why is it such an event whenever one happens to be elected to Congress?

It is obvious that discrimination exists. Women do not have the opportunities that men do. And women that do not conform to the system, who try to break with the accepted patterns, are stigmatized as ''odd'' and "unfeminine." The fact is that a woman who aspires to be chairman of the board, or a Member of the House, does so for exactly the same reasons as any man. Basically, these are that she thinks she can do the job and she wants to try.

A second argument often heard against the equal rights amendment is that is would eliminate legislation that many States and the Federal Government have enacted giving special protection to women and that it would throw the marriage and divorce laws into chaos.

As for the marriage laws, they are due for a sweeping reform, and an excellent beginning would be to wipe the existing ones off the books. Regarding special protection for working women, I cannot understand why it should be needed. Women need no protection that men do not need. What we need are laws to protect working people, to guarantee them fair pay, safe working conditions, protection against sickness and layoffs, and provision for dignified, comfortable retirement. Men and women need these things equally. That one sex needs protection more than the other is a male supremacist myth as ridiculous and unworthy of respect as the white supremacist myths that society is trying to cure itself of at this time.

Documents from the Women's Liberation Movement
An On-line Archival Collection
Special Collections Library, Duke University

littlemissmartypants

(22,597 posts)
25. My mother made me, yes I feared her...
Fri Jul 11, 2014, 11:33 AM
Jul 2014

Take typing in HS and it has proven invaluable when shooting off letters to congress.

WOMEN ARE COMING.
WITH OUT SHAME.

SEPT. 2014



 

toby jo

(1,269 posts)
19. Good idea - I'd forgotten we never got that through.
Fri Jul 11, 2014, 11:23 AM
Jul 2014

These guys call clusters of cells life and get their religion involved while they happily go and kill clusters of people called civilizations. They need to be handled.

theHandpuppet

(19,964 posts)
21. Martha Griffiths (D-MI) and the Equal Rights Amendment
Fri Jul 11, 2014, 11:26 AM
Jul 2014

From the National Archives...

Martha Griffiths and the Equal Rights Amendment

Martha Griffiths (D-MI) was a member of the United States House of Representatives from 1955-1974. She was the first woman to serve on the powerful House Committee on Ways and Means and was instrumental in getting the prohibition of sex discrimination added to the landmark Civil Rights Act of 1964. Griffiths is also known for resurrecting the Equal Rights Amendment (ERA).

The ERA was a proposed amendment to the U.S. Constitution that guaranteed equal rights under the law for Americans regardless of their sex. The ERA was first drafted in 1923 by suffragist Alice Paul. Following the enactment of the Nineteenth Amendment granting women the right to vote, Paul believed the ERA to be the next step in guaranteeing equal justice to all citizens.

From 1923 to 1970, some form of the ERA was introduced in every session of Congress. But, nearly every time that the ERA was introduced, it was held up in committee. In 1970, Griffiths filed a discharge petition to demand that the ERA be heard by the full House. A discharge petition, which requires the signatures of a majority of House members, forces proposed legislation out of committee so that it may be considered by the whole House of Representatives. Following the success of Griffiths's discharge petition, the ERA was passed by the House. However, the Senate attempted to add provisions exempting women from the draft, which effectively killed the chances of the ERA passing that session.

After some changes to the wording of the amendment, Griffiths re-introduced the ERA in the 92nd Congress as HJ Res. 208. After months of debate, hearings and House Judiciary Committee proposed changes, the ERA, as introduced by Griffiths, was approved by the House on October 12, 1971. The Senate approved an identical version on March 22, 1972, sending the ERA to the states with a seven-year deadline for ratification. In 1978, with the seven-year deadline fast approaching, and the ERA lacking the required number of state ratifications, Congress extended the time limit to June 30, 1982. However, by the time the extended deadline arrived, the ERA had only been ratified by 35 states - three states short of the three-fourths required for ratification of constitutional amendments....

MORE at http://www.archives.gov/legislative/features/griffiths/

ReRe

(10,597 posts)
29. You are leading the way....
Fri Jul 11, 2014, 12:05 PM
Jul 2014

Handpuppet! Thank you for all this wonderful history. History tells a story!
There's some great links on this thread!

Tanuki

(14,914 posts)
23. Recent events show that we need this as much as we always did.
Fri Jul 11, 2014, 11:30 AM
Jul 2014

Anyone who thinks we already have equal protection under the law hasn't been paying attention, at best.

ReRe

(10,597 posts)
28. K&R
Fri Jul 11, 2014, 11:56 AM
Jul 2014

All I can say is: If not now, then when? This is the time of change per MJ use, per LGBT rights. Irony is not just what I do to my hubby's shirts. The "Sexist Five" might think they have dealt women the good old conservative blow, but indeed they have opened a door!

Hp, do you have that link to the protest to be held on Sept 25th? I think there should be rolling protests (in different cities across the country) weekend after weekend, right up to election day. Appeal to all orgs/groups to join in: Unions, Occupy, LGBT, NOW, NAACP, etc., etc., etc.

Now is the time to ratify the ERA! And now is the time to bring it on The Citizens United decision, once and for all, proving that Corporations are NOT people, my friend. Oh yeah, and we need to be sure that we get a veto-proof, filibuster-proof Democratic majority in the House and the Senate this Nov and for the foreseeable future in order to replace the prejudiced right wing Justices on the Supreme Court.



theHandpuppet

(19,964 posts)
31. Which one is that, ReRe?
Fri Jul 11, 2014, 01:06 PM
Jul 2014

I've got so many dates swimming around in my head they're all starting to merge.

 

Jim Lane

(11,175 posts)
34. Your link doesn't work for me.
Fri Jul 11, 2014, 09:51 PM
Jul 2014

Given my understanding of constitutional law, the ERA, in the form ratified by 35 states, would not have produced a different result in the Hobby Lobby case. Therefore, I'd like to read the article, to see what argument the authors advance to the contrary. A quick search didn't uncover it. Do you have another link to provide?

As to the effect of the ERA, the form sent out to the states did not prohibit sex discrimination in general. It applied only to sex discrimination by government. Hobby Lobby was like the Southern lunch counters that wouldn't serve blacks in the days before the enactment of the Civil Rights Act -- the Equal Protection Clause, applying as it does to government discrimination, does not prohibit private actors from making decisions in a discriminatory manner. When the government's involvement is to apply general standards to the conditions created by private discrimination, it was not held to violate the Equal Protection Clause. (For example, it was not unconstitutional for the state to arrest and remove protestors who were trying to integrate racially segregated accommodations.) Such private discrimination was addressed by statute, not by the Constitution.

This seems clear to me. It's also clear to me, however, that Liz Holtzman is one of the smartest people around, which is why I'd like to read her analysis.

I recall seeing a much more broadly worded proposed amendment, one that would have reached private action, but I don't remember who was pushing it. Certainly it hasn't gotten much attention. Hobby Lobby has sparked renewed interest in the ERA from the 1970s, but proponents of the ERA may find themselves disappointed if they've overestimated its effects.

theHandpuppet

(19,964 posts)
41. Appreciate you getting back to me so soon.
Fri Jul 11, 2014, 11:21 PM
Jul 2014

I'll change the link in the OP. Let me know what you think of the article.

theHandpuppet

(19,964 posts)
43. You wrote....
Fri Jul 11, 2014, 11:30 PM
Jul 2014
I recall seeing a much more broadly worded proposed amendment, one that would have reached private action, but I don't remember who was pushing it. Certainly it hasn't gotten much attention. Hobby Lobby has sparked renewed interest in the ERA from the 1970s, but proponents of the ERA may find themselves disappointed if they've overestimated its effects.

Are you referring to the equal rights amendments now being debated by the several states, such as Oregon, Illinois and Missouri?
 

Jim Lane

(11,175 posts)
45. Clarifying
Sat Jul 12, 2014, 01:48 AM
Jul 2014

When I referred to "the ERA from the 1970s" I mean the version that Congress approved and sent to the states, and that's been ratified by 35 of the 38 states needed for it to be added to the Constitution. It includes the language that confines its scope to governmental action, which is also a significant limitation on the Equal Protection Clause. That explains why the Equal Protection Clause prohibits segregated public schools but not segregated lunch counters.

It wouldn't be surprising if some feminists, unhappy with that restriction, would want to see a broader Constitutional amendment. An amendment could be drafted that would prohibit the sex-discrimination equivalent of segregated lunch counters (one that would, for example, add to the Constitution the current statutory prohibitions on sex discrimination in private employment). The ERA now before the states, however, would not do so.

theHandpuppet

(19,964 posts)
48. The problem as I understand it...
Sat Jul 12, 2014, 07:53 AM
Jul 2014

... (and I also would prefer a broader amendment) is that such an amendment would have to be submitted anew to the states, where as the amendment already ratified by 35 of the 38 states needs only the ratification of three more states to become law. Right now it's referred to as the "three state strategy" about which more information may be found here: http://www.equalrightsamendment.org/faq.htm

In the current political clime we have to ask ourselves, does there exist the political will to begin the ratification process all over again with a broader version of the ERA? How many Americans today have any basic, working knowledge of the original ERA? Millions of voting Americans weren't even born at the time the initial battles were going on over three decades ago. I believe it would be a really tough slog. If the "three state strategy" is rejected on the grounds that the deadline for ratification has passed, however, then there would be no choice but to begin again.

I'm not aware of any proposals at this time to close some of the loopholes, as it were, in the original EPA draft or how this could be achieved without starting the ratification process from scratch, which could take years. If you have any additional information on this I'd very much appreciate if you'd pass it along. I'm certainly no lawyer so any clarification of these issues would be much appreciated.

You wrote:
It wouldn't be surprising if some feminists, unhappy with that restriction, would want to see a broader Constitutional amendment. An amendment could be drafted that would prohibit the sex-discrimination equivalent of segregated lunch counters (one that would, for example, add to the Constitution the current statutory prohibitions on sex discrimination in private employment). The ERA now before the states, however, would not do so.

 

Jim Lane

(11,175 posts)
49. I completely agree with you
Sat Jul 12, 2014, 11:30 AM
Jul 2014

You're quite right that pushing a broader amendment would require beginning all over again, by getting approval of two-thirds of each house of Congress and then getting 38 state ratifications from a starting point of zero. The political will wouldn't be there because many supporters of equal rights would consider a Constitutional amendment to be an inappropriate way to regulate private conduct.

In general, the Constitution is about government -- its powers, functions, organization, limitations, etc. The only exception I can think of is the Eighteenth Amendment, establishing Prohibition, which of course was repealed by the Twenty-First Amendment. A statute can be amended much more readily if experience shows that there's a problem. If a Constitutional amendment were held by the courts to require that some all-male Friday night poker game admit women, or that the Michigan Womyn's Music Festival admit men, then even a widespread consensus that that was a bad result would be difficult to translate into action. For example, note how the Citizens United interpretation of the First Amendment is so unpopular but we're still stuck with it.

I'm certainly not advocating a broader amendment on sex discrimination, which would be DOA in Congress anyway. My point is just that the current ERA, the one that's the focus of the three state strategy, is not a panacea for eliminating sexism in American life. In particular, if the ERA were ratified and the Supreme Court then had to reconsider Hobby Lobby in light of this change in the Constitution, I predict that all nine Justices would adhere to the positions they just announced.

Some Democrats in Congress have already announced plans to try to amend the RFRA in response to the decision. That course is much easier than amending the Constitution. It has the added advantage that it would actually compel Hobby Lobby and other such employees to cover women's contraception, which, IMO, the ERA would not.

theHandpuppet

(19,964 posts)
50. Thanks much for all the information
Sat Jul 12, 2014, 12:41 PM
Jul 2014

You wrote:

Some Democrats in Congress have already announced plans to try to amend the RFRA in response to the decision. That course is much easier than amending the Constitution. It has the added advantage that it would actually compel Hobby Lobby and other such employees to cover women's contraception, which, IMO, the ERA would not.

Just how could that be accomplished, i.e., what would it require?

 

Jim Lane

(11,175 posts)
54. Legally, it's easy enough, although I can't see the House going along with it unless control changes
Sat Jul 12, 2014, 05:16 PM
Jul 2014

The Hobby Lobby decision wasn't based on First Amendment rights. Instead, it was based on statutes. Congress had passed one statute (the ACA) that required employers to provide health insurance, including coverage for contraceptives. In the 1990s it had passed another statute (the RFRA) under which, in certain circumstances, a religious belief would excuse compliance with statutes of general applicability. The issue before the Court was whether the RFRA exception could be applied to the ACA's mandate for contraception coverage.

All that's necessary is a new law (simple majority in each house and signed by the President, unlike a new Constitutional amendment that would require two-thirds in each house). The new law would resolve the conflict by stating that RFRA's exemption isn't available to the ACA provision -- or, perhaps, to draw some lines, like the exemption is available to individual employers but not to corporations.

I can't imagine that such a statute would pass the House as currently constituted. Its main practical importance would be to get Republican Senators on record as filibustering it and/or voting against it, and, if it passed the Senate, to pin the Republicans in the House with either voting against it or refusing to take it up. Then it could be used as a campaign issue. The Republicans wouldn't be able to hide behind the Court.

 

Jim Lane

(11,175 posts)
46. Follow-up: The linked article doesn't answer my question.
Sat Jul 12, 2014, 02:16 AM
Jul 2014

Thanks to theHandpuppet, I’ve now read the article linked in the OP. Unfortunately, the authors don’t address the question of state action, possibly because of the space constraints imposed by the popular press on lawyers who try to analyze 95 pages of dense legal writing by Justices of the Supreme Court.

Holzman and Neuwirth consider the comparative burdens on each of the competing interests. After pointing out the cost of contraception, in a passage included in the OP here, they make an equally important point about the alleged burden on Hobby Lobby: that the decision to use contraception would be made by each employee, not by the company. To my mind, this is perhaps the most glaring logical flaw in the majority’s ruling. The position of Hobby Lobby’s owners was, in effect, “Our religious beliefs are violated if you use contraception.” A claim of religious liberty that takes that form just isn’t entitled to much consideration from the legal system.

The authors note, “Unsurprisingly, the term ‘sex discrimination’ appears nowhere in the court’s decision.” That’s true, but it also isn’t a focus of the dissent. Justice Ginsburg wrote the opinion for the Court in United States v. Virginia, 518 U.S. 515 (1996), holding that the Equal Protection Clause was violated when the state of Virginia operated a males-only institution (Virginia Military Institute). Nevertheless, in her Hobby Lobby dissent she didn’t cite the VMI case. In fact, she didn’t even mention the Equal Protection Clause, despite the sweeping reading that she had given to that clause in her VMI opinion:

In 1971, for the first time in our Nation's history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Reed v. Reed, 404 U. S. 71, 73 (holding unconstitutional Idaho Code prescription that, among "'several persons claiming and equally entitled to administer [a decedent's estate], males must be preferred to females' &quot . Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature – equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities. See, e. g., Kirchberg v. Feenstra, 450 U. S. 455, 462-463 (1981) (affirming invalidity of Louisiana law that made husband "head and master" of property jointly owned with his wife, giving him unilateral right to dispose of such property without his wife's consent); Stanton v. Stanton, 421 U. S. 7 (1975) (invalidating Utah requirement that parents support boys until age 21, girls only until age 18).


I believe that Ginsburg did not return to this line of argument in Hobby Lobby because she recognized the distinction between all those cases, in which a governmental entity made the decision to discriminate, and the one before her, in which the decision was made by private parties. That wasn't the focus of the Holtzman/Neuwirth article, but it's an issue that needs to be addressed in considering what effect ratification of the ERA would have on the Hobby Lobby decision.

theHandpuppet

(19,964 posts)
37. You're very welcome
Fri Jul 11, 2014, 11:11 PM
Jul 2014

I just hope this becomes a real campaign issue because I think it's more important to women than most realize -- especially in light of the recent SC decisions.

theHandpuppet

(19,964 posts)
42. Women's votes have turned more than one state blue
Fri Jul 11, 2014, 11:25 PM
Jul 2014

Just wait. The Repukes and their comrades at the SC have pissed off millions of women. All the more reason to make sure any attempts to suppress voting and voter registration gets slapped down.

TheKentuckian

(25,020 posts)
44. Way past time but mealy mouthed weaseling won't carry the day.
Fri Jul 11, 2014, 11:44 PM
Jul 2014

You can't meet in the middle your way to it.

You aren't even going to be able to factually state your case to it.

It means fighting. It means conflict. It means accepting that sometimes being "the adult in the room" means stopping a brat's antics not just mumbling platitudes and wringing hands while they spread havoc and discontent.

theHandpuppet

(19,964 posts)
56. You're very welcome
Mon Jul 14, 2014, 10:09 PM
Jul 2014

I'm glad we have contributors like Jim Lane around because some of the legal issues involved here are way beyond my scope. It's always nice to find someone who can get right to the point and explain these issues in a way even a legal dolt such as myself can understand.

niyad

(113,086 posts)
57. you are not a dolt--legalese is an arcane language, designed to obfuscate and bewilder the
Mon Jul 14, 2014, 10:11 PM
Jul 2014

non-lawyerly person. (kind of like the rcc holding masses in latin)

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