The Supreme Court opens a drive-through window for right-wing zealots with (right-wing Christian) religious objections to the law

"I disagree strongly with what the Court has done," Justice Sotomayor wrote, joined by Justices Ginsburg and Kagan in what the NYT's Adam Liptak called "an unusually fierce dissent."

by Ken

The other day I wrote, regarding the last-day-of-term dump of the Supreme Court's Cro-Magnon majority's two most egregious decisions:

Was there any doubt that the Cro-Magnon Five knew that these exhibitions of thuggery were going to produce firestorms? Possibly the atmosphere around the place is getting testier as the four Court moderates understand just what contempt they're held in, and some of the venom that's creeping into their dissenting opinions is also being vented in chambers, and some of the more tender-eared C-Ms are actually noticing. In any case, it seems pretty clear that the release of the Hobby Lobby and Harris rulings was a dirty dump-and-run job.

There may have been an additional consideration here in that both decisions were announced by that fumbling fool Sammy "The Hammer" Alito, and when The Hammer drops an opinion, the ignorance and stupidity start flaking off before the thing hits the ground. You'd like to think that some at least of the C-M justices are capable of some level of embarrassment.

It appears that mounting tension between the Court moderates and the rampaging Cro-Magnons isn't a figment of my imagination. Yesterday Justices Sotomayor, in what the NYT's Adam Liptak describes as "an unusually fierce dissent" -- a dissent joined by Justices Ginsburg and Kagan (the Court's three women, in case you weren't counting) -- went kind of nuclear on what she views as the Cro-Magnon Five's legally meritless and precedentless granting of injunctive relief, in an unsigned opinion, to sectarian Wheaton College, staying the school at least temporarily from having to follow the procedures established under the ACA for nonprofit religious instuttions to hand off responsibility for providing contraceptive coverage to its employees.

Now you may be thinking, well, nonprofit institutions with religious convictions are a different class from the for-profit companies who were allowed by the Hobby Lobby ruling to escape contraceptive coverage. Actually, as Justice Sotomayor points out, this isn't so. It's true that the nonprofit religious institutions were indeed already covered by the exemption already worked out by the Obama administration, establishing procedures for handing off the legally mandated coverage to third parties. This, the Court announced just Monday, "constitutes an alternative that achieves all of the Gov- ernment’s aims while providing greater respect for reli- gious liberty."

But, as Justice Sotomayor notes, the very existence of these procedures was an essential underpinning of Monday's ruling -- since these swell and minimally burdensome procedures had already been worked out, the same procedures could simply be applied to religiously objecting for-profit companies (provided they satisfy the laughably loose criteria noted by Justice Sammy the Fool).

But now, says Justice Sotomayor, the anonymous majority decision grants injuctive relief to a party that not only has no valid legal claim, and no clear expectation of prevailing on appeal, but is seeking to invalidate the very procedures the Court just said on Monday were so swell.

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA [the 1993 Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

In fact, Justice Sotomayor demonstrates pretty convincingly that the majority ruling comes in blunt defiance of every Supreme Court procedure, precedent, and standard of evidence.

Sammy the Fool's dribbling excuse for a ruling, you'll recall, had depended, not on the Constitution, but on application of the RFRA. The RFRA is indeed a monstrosity, and provided legal cover for Sammy the Fool to dribble forth the ruling he was determined to make anyway. However, Justice Sotomayor argues that "Wheaton has not stated a viable claim under RFRA." It simply claims that filling out the form established for the purpose, which the Court was so enthusiastic about on Monday, "impermissibly burdens Wheaton’s free exercise of its religion."

OF COURSE WHEATON AND THE CRO-MAGNONS DON'T
TRULY CARE ABOUT "FREE EXERCISE OF RELIGION"

Nobody is trying to interfere with the college's "free exercise of its religion" -- just trying to get it to follow the law, as established to enable it to maintain its religious convictions, as attested to just three days earlier by the very same judicial Cro-Magnons. Justice Sotomayor writes:

I have deep respect for religious faith, for the important and selfless work performed by religious organizations, and for the values of pluralism protected by RFRA and the Free Exercise Clause. But the Court’s grant of an injunction in this case allows Wheaton’s beliefs about the effects of its actions to trump the democratic interest in allowing the Government to enforce the law.

And of course as many commentators have pointed out, if the challenge in Monday's decision had come from, say, Muslims trying to guard the free exercise of their religion, the Catholic bigots in the C-M majority would probably have spat in their faces.

JUSTICE SOTOMAYOR WRITES: "I DISAGREE
STRONGLY WITH WHAT THE COURT HAS DONE"

Wheaton asks us to enjoin the enforcement of a duly enacted law and duly promulgated regulations before the courts below have passed on the merits of its legal challenge. Relief of this nature is extraordinary and reserved for the rarest of cases. With good reason.

She goes on to demonstrate that the majority action tramples on all the standards previously established for action in those "rarest of cases."

Furthermore, Justice Sotomayor seems singularly unimpressed, actually pretty pissed, by the ruling's blithe rewriting of HHS procedures. It's not just that the Court's just formally announced its approval of those very procedures. Or even that the new ruling's alternative procedures would be both more cumbersome and ineffective than those just lauded by the Court. When, she wonders, did the Supreme Court become a rule-writing authority?

To the Cro-Magnon majority none of this matters, any more than the Constitution and laws it's supposed to be upholding matter, when the get in the way of the C-Ms' radical right-wing agenda. In the end, the Cro-Magnon Five seem to be saying, is that We're in Charge, and the minority moderate justices might just as well occupy themselves with more productive activities -- perhaps cooking and cleaning. Or perhaps the C-Ms have some socks that need mending? Maybe they can find some good use for having three ladies on the Court after all.

Justice Sotomayor concludes her dissent:

In granting an injunction concerning this religious nonprofit accommodation, the availability of which served as the premise for the Court’s decision in Hobby Lobby, the Court cannot possibly be applying our longstanding requirement that a party’s entitlement to relief be indisputably clear.

Our jurisprudence has over the years drawn a careful boundary between majoritarian democracy and the right of every American to practice his or her religion freely. We should not use the extraordinary vehicle of an injunction under the All Writs Act to work so fundamental a shift in that boundary. Because Wheaton cannot justify the relief it seeks, I would deny its application for an injunction, and I respectfully dissent from the Court’s refusal to do so.

Oh pooh, Justice Sonia! Nobody cares! In the end, despite Justice Sammy's idiotic claims about the Hobby Lobby ruling having limited application, both in terms of who may claim the religious exemption and what they may claim religious exemption from (why on earth should it be limited, as he insists, to contraception?), the clear intent of the ruling was to send a happy "howdy" from Your Down-Home Supreme Court to right-wing zealots across the land:

"Come on in, buddy! We're here for you!"

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