“Ain’t I a Woman?”
An all-male majority on the U.S. Supreme Court has sanctioned insidious sex discrimination in the Hobby Lobby case.
In its decision, the majority states that a privately-held for-profit corporation does not have to follow federal regulations requiring employers to provide workers with an insurance plan that includes, among other things, no-cost contraceptives. The majority upheld Hobby Lobby‘s religious objection to paying for contraceptives. lodged under the Religious Freedom Restoration Act. So Hobby Lobby does not have to provide no-cost contraceptives under its insurance plan.
Only women use the contraceptives at issue in the Hobby Lobby case.
Justice Samuel Alito, who wrote the majority opinion, refers to the issue of discrimination in the context of fears that an employer might lodge a religious objections involving race discrimination. For example, suppose a restaurant owner doesn’t want to serve blacks for religious reasons. Justice Alito writes:
“The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”
Okay, so the Court makes it clear it will not countenance religious objections that are based on race discrimination. But why then has the Court approved religious objections that are based on sex discrimination?
It does not denigrate the abhorrent history of racism in the United States to assert that the government also has – or at least should have – a compelling interest in providing equal opportunity for women to participate in the workforce without regard to sex. Not just women – also older workers, the disabled, other religious groups, etc.
The tug of war between compelling and non-compelling discrimination has been going on since before 1869 when Congress passed the Fifteenth Amendment giving African-American men the right to vote – but not African-American women.
Sojourner Truth was an African-American woman who was born into slavery and escaped with her daughter to become an abolitionist and women’s rights activist. She delivered a famous speech at a suffragist convention in New York in 1851 in which she asserted that women are entitled to the same rights as men.
“That man over there say that women needs to be helped into carriages, lifted over ditches, and to have the best place everywhere. Nobody ever helps me into carriages, or over mud-puddles, or gives me any best place! And ain’t I a woman? Look at me! Look at my arm! I have ploughed, and planted, and gathered into barns, and no man could head me! And ain’t I a woman? I could work as much and eat as much as a man-when I could get it-and bear the lash as well! And ain’t I a woman? and when I cried out with my mother’s grief, none but Jesus heard me. And ain’t I a woman?
Sojourner Truth also dispatched the religious argument for denying women the right to vote. “Then that little man in black there, he says women can’t have as much rights as men, because Christ wasn’t a woman! Where did your Christ come from? … From God and a woman! Men had nothing to do with Him.”