Meet The GOP’s Judicial Farm Team, Part I: A Constitutional Right To Fire Women

The following is the first in a series of posts about the annual meeting of the GOP’s most influential legal group.

No organization did more to shape our federal judiciary than the conservative Federalist Society. President George W. Bush raided their membership to identify his nominees to the federal bench. Their annual lawyers’ convention this week features 18 federal judges — plus Justices Antonin Scalia and Samuel Alito. In the same year that President Bush headlined their convention, four sitting Supreme Court justices also delivered remarks.

And the Federalists are not simply the breeding ground for new Republican judges, they are also the incubator of the conservative movement’s plans to rewrite the Constitution in the GOP’s image. In 2009 the Federalists published a white paper attacking the constitutionality of the Affordable Care Act that was largely ignored by reputable scholars because its arguments were terrible. Three years later, the Supreme Court came within a hair of taking health care away from tens of millions of Americans using reasoning similar to the Federalist Society’s paper.

So when a legal argument — even a bad one — is featured in a Society publication or at their national convention, the whole country should take heed. The misreading of the Constitution floated by the Federalists today is likely to wind up in an opinion by Justice Scalia tomorrow.

The Federalists picked an inauspicious moment for their annual lawyers’ convention this year — barely a week after President Obama vanquished a man who would have passed out even more black robes to their membership. So there was no lack of bitterness at their meeting this week. When one of the liberal speakers the Federalists invite as sparring partners for their conservative Illuminati suggested that state lawmakers should work with the federal government to provide health care for the least fortunate, an audience member audibly called out “she’s a fascist.”

The biggest loser in last week’s election was probably the religious right, however, which not only saw their hated president reelected but also witnessed what is likely the beginning of the end of anti-gay discrimination by American governments. So the convention’s panel yesterday morning on “The Future of Religious Liberty” opened with a barbaric yawp at social conservatives’ recent defeat. George Mason law Professor Helen Alvaré, a speaker who literally travels the globe speaking out against the dangers of “sexual expression by empowered women,” opened the panel by complaining about how President Obama’s reelection campaign convinced the nation that the religious right’s priorities are anti-woman — “women were invited to vote as if their ladyparts depended on it, but the last time I checked . . . Christians are not looking to excise those.”

Yet sitting just a few feet away from Alvaré was conservative scholar Michael Uhlmann, who suggested during the panel that current law, which exempts religious employers from parts of federal anti-discrimination law, should go much farther and exempt many for-profit companies as well. After the panel, ThinkProgress spoke with Uhlmann to give him a chance to clarify what he meant by his claim that far more companies should be able to ignore laws banning discrimination in the workplace. His response did far more to justify fears that conservatives desire a war on women than anything President Obama said during the campaign:

MILLHISER: The Catholic Church has a First Amendment right to say “we will not hire women for certain positions.” If I start an HVAC company, I do not have a right to say I will not hire a woman.

UHLMANN: Maybe not. Maybe, maybe not.

MILLHISER: Do you think I should [have the right to not hire a woman]?

UHLMANN: Presumptively, yeah. Why not? If, in fact, as it appears to be in the case of Hercules or Hobby Lobby, these are in fact rather religiously-devoted people that are running these enterprises.

To be fair to Uhlmann, he was unwilling to say that employers absolutely have a right to refuse to hire women — only that they “presumptively” have that right — but his proposed rule would, at the very least, require women unjustly fired for being women to jump over some very high legal hurdles before they could get their job back.

If the Federalist Society does not want people to think conservatives are anti-women, they should stop promoting speakers and policies that are anti-women. A good start would be disavowing the idea that companies have a constitutional right to fire someone for having a vagina.