Littwin: Gardner in Hobby Lobby land

[dropcap]T[/dropcap]here seems to be some disagreement about how the Hobby Lobby ruling will play out politically on the national stage.

But there’s no question here in Colorado.

If this was a bad day for women, which it was, and a bad day for our activist Supreme Court, which it was, it was a terrible day for Cory Gardner. This ruling, after all, is the Gardner personhood story writ large – really, really, really large.

The ruling hit Gardner where he lives – or where he used to live anyway, and maybe still does. You see, this is the problem. It’s confusing.

Of course, so was the Supreme Court ruling, which went something like this: Since corporations are people, certain corporations – those that are family-owned — have the same freedom of religion as, you know, real people. Therefore, for-profit, family-owned corporations like Hobby Lobby can successfully claim a person-like religious exemption from an Obamacare mandate if the rules compromise their beliefs.

[pullquote]The Hobby Lobby ruling is the Cory Gardner personhood story writ large. Justice Alito said the ruling should be limited to birth control and not to other issues of religious conscience. But why? I know Gardner must be wondering why.[/pullquote]

And so it was that Hobby Lobby is now allowed not to cover its employees for certain forms of birth control, even though many of the 15,000 full-time employees are people themselves and might well have religious beliefs that run counter to those of the corporation.

This was another 5-4 ruling and maybe a make-up call for the court for its ruling that Obamacare was constitutional. It’s hard to explain it any other way. In writing the majority opinion, Justice Samuel Alito said the ruling should be limited to birth control and not to other issues of religious conscience. Did you ask why? Do we have to ask why?

I know Gardner must be wondering.

As you know, since Gardner decided to run for the Senate, he has tried to, let’s say, reconceive his position on birth control. And so it was that he become the last person in Colorado to discover that adoption of the personhood amendment, which he had long supported, would mean women wouldn’t have access to certain forms of birth control. This, he said, he could not abide. And so he announced that he could no longer support personhood — in Colorado.

Strangely, though, Gardner remains a co-sponsor of a House personhood bill, which would deny women in every state, presumably including Colorado, access to certain forms of birth control. I’m waiting for Gardner to explain the difference, but so far he has declined.

And then comes the Hobby Lobby ruling, which just makes matters worse. As it happens, Gardner also co-sponsored a House bill that would have allowed companies, family-owned or otherwise, to deny coverage of “a specific item or service contrary to the provider’s religious beliefs or moral conviction.” Call it Hobby Lobby-plus.

In other words, if companies wanted to deny birth control, in any form, they could, as a matter of conscience, which would seem to run counter to Gardner’s concern about women’s access. In most parts of America, birth control is not controversial. We now have at least two exceptions: The House of Representatives and the Supreme Court.

And, if the House bill that Gardner co-sponsored had become law, companies wouldn’t have had to stop with birth control. They could also deny, say, vaccines or blood transfusions or God knows what else.

Soon after the ruling, Gardner issued a statement in support of the Supreme Court decision. But his statement quickly segued to Gardner’s newfound call for birth control pills to be sold over the counter, which seems to have absolutely nothing to do with Hobby Lobby, but does sort of change the subject. Which Gardner obviously wanted to do.

It’s not like he wanted to spend much time arguing with Justice Ruth Bader Ginsburg’s dissenting point that “the exercise of religion is characteristic of natural persons, not artificial legal entities.”

Still, Alito wrote that the ruling was narrowly cast and didn’t “necessarily” apply to other kinds of corporations or other kinds of exemptions. Ginsburg countered that it was a “decision of startling breadth,” and one that could lead anywhere. Certainly, you can expect other closely held companies to file their own lawsuits and for non-closely-held companies to wonder, in a courtroom, why they shouldn’t be allowed to have religious beliefs as well. Aren’t they artificial legal entities — I mean, people — too?

In any case, if you follow the Gardner House sponsorships, it looks as if Gardner favors a wide interpretation – one so wide that Udall’s campaign sent out an email saying that the court “follows Gardner’s lead.” That may be a slight exaggeration, or maybe even more than slight, but you can see why Udall is going there.

In the 2010 Senate race, Democrats could rely on Ken Buck’s various missteps on social issues to help Michael Bennet win the women’s vote and, in doing so, win the election.

Cory Gardner doesn’t do gaffes. He rarely misspeaks. That’s part of why he’s considered such a strong candidate. But his greatest weakness is the long list of troubling social-issues votes he has cast — votes that he now has to explain if he’s going to beat Mark Udall.

And that’s why Hobby Lobby hurts: The last thing Gardner needs is for the Supreme Court to explain those votes for him.


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