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ISTOOK: Obamacare: One small step against diversity?

- - Wednesday, March 26, 2014

They surely didn’t intend it, but the three female Supreme Court justices struck a blow against diversity when they ganged-up against Hobby Lobby’s lawyer Tuesday.

During oral arguments on Obamacare’s contraception mandate, Paul Clement literally had not completed two sentences before he was interrupted by the trio, beginning with the “wise Latina” Justice Sonia Sotomayor. She was followed by Justices Elena Kagan and Ruth Bader Ginsburg before any of the men on the bench even warmed up their vocal chords.

It was ladies first.

They never questioned the central premise of the case: Why should government regulations compel a family-owned business to pay for abortion-inducing morning-after pills (which sell for $40 and less) under the pretense that those are too expensive for female employees to buy for themselves? Instead, Hobby Lobby faces a $475-million fine for not providing them. In the alternative, it can drop all insurance for its employees and be fined “only” $26 million.

Justice Sotomayor launched the interruptions by asking if employers could go beyond balking at providing contraceptives and also object to providing blood transfusions, vaccines, or products made with pork?

Justice Kagan soon chimed in with a marvelous summary of the philosophical pretense of liberalism: “So one religious group could opt out of this, and another religious group could opt out of that, and everything would be piecemeal and nothing would be uniform.”

In other words, the religious beliefs of Hobby Lobby’s seven owners are a threat to conformity — government-imposed conformity.

What is the opposite of conformity? Diversity.

In a country of 317 million people, with 50 states, more than 3,000 counties and almost 20,000 cities, where even left-leaning Ben & Jerry’s advertises more than 75 flavors of ice cream on its website — why must all health-care policies be uniform?

In a country where we choose supermarkets because they have a variety of fruits and vegetables; where soda aisles are packed with dozens of flavors; where we pick from multitudes of salad dressings; where pre-sliced lunch meats are smoked, baked, honey, oven-roasted, cured, mesquite, rotisserie, Black Forest, black pepper, Cajun-style and more, in either ham, chicken, turkey, beef, or mystery meat — why must all health-care policies be uniform?

Why are so many varieties of pickles found in the grocery aisles?

Why so many different breads?

Why so many different cookies?

They all violate Justice Kagan’s principle of uniformity — the goose-step that hides behind the label of faux diversity.

Why doesn’t government dictate just one style of everything and “simplify” the rest of our lives, like it does with health care? If Obamacare is supposed to save us from substandard insurance, shouldn’t “Obamacars” save us from substandard automobiles? And “Obamacurs” would make sure we have the best breed of dog.

Justice Kagan’s tribute to uniformity surely was just situational ethics at work. Uniformity and consistency would be abandoned if she were judging the propriety of President Obama’s latest decision to ignore the clear text of the Obamacare law about the March 31 enrollment deadline. Or judging his “prosecutorial discretion” that allows a million people to remain in the country illegally and be given work permits.

But for one brief shining moment, there was a dent in the armor of political correctness when a champion of diversity like Justice Kagan spoke out against it.

Actually, there was a prior occasion when Justice Kagan did so. Speaking at a synagogue during 2012’s Hanukkah, she commented, “there are a lot of ways the court is not very diverse,” including “there are four of us from New York City,” they come from a limited pool of law schools, and three justices are Jewish and six are Catholic.

That explains a lot about many Supreme Court decisions.

That also will make it interesting when the next set of challenges to Obamacare’s contraception mandate reach the Supreme Court. Unlike the Hobby Lobby case that involves a business, the next batch of challenges come from dozens of Catholic hospitals, schools and institutions. Those include the University of Notre Dame and the Little Sisters of the Poor.

For now, the Obama administration tries to hide its hostility toward religion by pretending it’s only displaying hostility toward that nasty old profit motive. But when the Catholic cases reach the high court, Obama’s true colors on religion will become clearer. The arguments by Obama’s lawyers then will illustrate his philosophy, namely that separation of church and state to him means that as the state expands, religion must shrink.

This is why the Vatican’s chief justice, Cardinal Raymond Burke, accuses President Obama of being hostile toward Christianity.

On Thursday, President Obama is scheduled to meet with Pope Francis. President Obama should be grateful that the pope is noted for being kind.

Former Congressman Istook’s daily talk show is heard on The Washington Times’ Radio Network. Sign up for his free newsletter at eepurl.com/JPojD.