The Supreme Court and Whippings

In the wake of Supreme Court Justice Antonin Scalia’s death and the upcoming fight over his replacement,  let’s not forget that not only are abortion rights at stake, but also access to contraception. A brief look at the confluence of religion, women, and the law in one decision by the last Supreme Court reveals how the Puritan legacy continues to play out in American politics and in women’s lives.

 Two years ago, the Supreme Court ruled 5 to 4 that privately-held corporations may refuse to pay for certain forms of contraception for their female employees, if doing so would be against the owners’ religious beliefs. This was despite the fact that the federal government’s Affordable Care Act requires contraceptive coverage. The decision was made not on the basis of the First Amendment’s protection of religious freedom—a concept that would have appalled the Puritans---but on the basis of the Religious Freedom Act passed by Congress. Judge Samuel Alioto, writing for the majority, which included Scalia, claimed that this was a narrow ruling, effecting only contraception, and only closely-held corporations without public shareholders. However, the dissenting judges pointed out that any religious group could make claims beyond those related to contraception, expanding the scope of the law, and that many of the country’s largest corporations are closely-held.

The case, brought by Hobby Lobby Inc., a family-owned crafts supply retailer, is a stark reminder of how the Puritan concern with other people’s business, especially their sexuality, lives on in modern America, albeit alongside a consumerist culture that uses sex to sell nearly everything. Why would the owners of this company care if some of their 16,000 workers use the IUD, a contraceptive device generally recommended only for women in monogamous relationships, or the hormonal contraceptive known as Plan B?  Yes, these may interfere with fertilization, but according to U.S. law, life begins at implantation, not at fertilization. But so what? How do the choices employees make in their private lives concern their employer? Not surprisingly, this ruling only affects women, not men, who, for example, may want to use Viagra, inside or outside their marriage.

This concern with a female subordinate’s sexual behavior harkens straight back to the early 1600s when both Plymouth and the Massachusetts Bay Colony, two early theocratic English settlements in what would become the United States, were established by members of the Protestant sect known as the Puritans. Not only was there no right to privacy, the very idea of privacy was suspect. Everyone was expected to pay attention to everyone else’s affairs.  The Puritans saw themselves as having made a pact with God: their good behavior in exchange for His protection, and so any bad behavior was believed to threaten the entire community.  And having sex before or outside of marriage was near the top of their list of sins.  Trials were public and penalties designed for maximum humiliation. While a man might be given the opportunity to pay a fine, a women, as a seductive daughter of Eve,  was more often whipped.  

Even married couples in New England could be tried for fornication, with both partners subject to being whipped, if they had a full-term child less than 32 weeks after their wedding. However, since English law allowed couples to marry without the benefit of witnesses or clergy, many ordinary people believed that once a couple had “pledged their troth,” publicly or privately, they were as good as married and entitled to enjoy conjugal relations.  Puritan officials vehemently disagreed with this and with the custom of informal divorces where a couple simply separated and took new partners, charging the latter with either bigamy, if they remarried, or adultery—a capital crime—if they did not.

This battle between official standards and popular attitudes, which Richard Godbeer describes as a “culture war” in his book Sexual Revolution in Early America, continued through the 18^th century, and, in my opinion, resurfaced after the sexual revolution of the 1960s, itself the result of widespread access to reliable forms of contraception.

We may think that we have come a long way from the worldview of our Puritan founders who punished sex outside marriage with whipping or even hanging, that we are a long way from those societies that attempt to control female desire by mutilating the genitals of girls and punish women with honor killings and stonings.  But in allowing employers to discriminate against female workers by denying them access to their choice of birth control, we are still minding other people’s private lives and punishing women for being sexually active, within or outside of marriage.  

Let’s hope the next Supreme Court sees such cases as Hobby Lobby and the more recent Texas restrictions on abortion for what they really are: attempts to undermine women’s rights to self-determination, and perhaps even revive our own version of a theocratic state.