There are certainly many troubling aspects of yesterday’s Supreme Court ruling in the Hobby Lobby case. That the majority opinion rests on upholding the 1993 Religious Freedom Restoration Act has been rightly criticized, particularly by democratic authors of that bill. The protection of religious freedom for individuals was never intended to extend to for-profit corporations, they say; and certainly this expansion of the RFRA has implications that go well beyond the sphere of a couple of franchises. I am sure that I’m not alone in feeling that SCOTUS has awarded corporate owners far too much latitude to engage in discriminatory practices, but I also feel it’s worth noting that this decision comes at a terrible time, when some of the wealthiest and most powerful corporations trade in a new commodity comprised of personal information.
If under the 1993 RFRA, an employer can refuse to pay for coverage of contraception for female employees, why does it not allow an employer to simply fire a woman for some other sin against said employer’s religious beliefs? After all, the employer supports his employees with a salary, so why should he not be allowed to sever that support upon learning that a woman in his employ is pregnant out of wedlock or has terminated a pregnancy while in his employ or has bought contraception on her own — with the money he pays her dammit! Sound crazy? Well, this is a ruling predicated on crazy, and if RFRA can trump one federal law, why can’t it trump another?
If in fact this is the slippery slope on which we now stand, how long do we think it will take for employers (sincerely or insincerely “religious”) to acquire the kind of personal information that is implicitly now part of their purview? The answer to that is no time at all. Google, Facebook, Twitter, et al have been bundling whatever personal information we share into commodities bought sold by data brokers. Bought and sold by which entities? Searchable according to what organizing principles? I know from experience that, even pre-Internet, it took various companies about ten minutes to know my wife was pregnant with our first child and to start sending us coupons and other offers for baby products. How long before networked systems and social media reveal a woman’s pregnancy termination or some other physiological, social, or sexual information that is none of an employer’s damn business?
Incorporation provides a number of opportunities and establishes a number of responsibilities, all of which are predicated on the fact that the business becomes an entity separate from its principals. This ruling on Hobby Lobby invests non-human entities with the right of religious freedom while disenfranchising actual human beings from a newly enacted right to healthcare. That this event coincides with the loss of privacy and the commoditization of personal data ought to scare the hell out of everyone.