What Does the Hobby Lobby Decision Mean For LGBT People?

Jim Burroway

June 30th, 2014

Today, the United States Supreme Court ruled that Hobby Lobby and other closely held corporations and family-owned businesses may not be compelled under the Affordable Care Act (ACA) to provide contraception coverage as part of their employees’ health plan if doing so would violate the company’s sincerely-held religious beliefs under the Religious Freedom Restoration Act (RFRA). I can sort of understand how a family that owns a family-owned business can hold strong religious beliefs, but I’m still unclear how that applies to public corporations, not matter how closely owned it may be. (Did Hobby Lobby’s corporate charter have to undergo baptism by immersion, or would sprinkling do?) But at any rate, that is now the law of the land, and it has LGBT-rights advocates on edge because it may be an opening toward allowing companies to deny spousal benefits to same-sex couples, whether it is health benefits, medical leave, etc. It will probably take several more lawsuits and several more rulings before we have a clearer picture of how broad or narrow this ruling will actually turn out to be. Writing for the majority, Justice Samuel Alito tried to cage the ruling this way (PDF: 512KB/95 pages):

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

The federal government has expressed its compelling interest in prohibiting racial discrimination through the Civil Rights Act of 1964 and several other laws promulgated by Congress and regulations by the Executive branch. Some states have anti-discrimination laws that cover sexual orientation, and a subset of those also cover gender identity. Those laws may provide some protections at the state level since the RFRA applies only to federal law, but it remains an inconsistent patchwork that varies state to state. Meanwhile, Congress has long failed to pass the Employment Non-Discrimination Act and prior anti-discrimination proposals dating back to the 1970s. In fact, several LGBT-rights organizations are now dropping their support for ENDA because it would provide broad religious-based exemptions similar to the Arizona “Religious Freedom” bill that Gov. Jan Brewer vetoed this year. So since the federal government has not identified discrimination on the basis of sexual orientation or gender identity as a compelling interest, it would seem to me that LGBT people will be made particularly vulnerable because of this decision. The principle dissent, written by Justice Ruth Bader Ginsburg, agrees:

Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc ., 256 F. Supp. 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ‘d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967), aff ‘d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn.1985) (born-again Christians who owned closely held, for profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986); Elane Photography, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”?

There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear, has ventured into a minefield by its immoderate reading of RFRA.

I think it’s noteworthy that Alito addressed the first objection in Ginsburg’s dissent concerning racial discrimination, but not the other examples. SCOTUSblog noticed that omission as well:

With respect to implications for other kinds of religious-based discrimination, the Court writes that racial discrimination in hiring will not be permitted under RFRA because “The Government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to acheive that critical goal.” Note that this leave open the question of whether the Government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation.

Dennis W

June 30th, 2014

What exactly is the legal principle upon which this decision rests? Company = person? or we wanted to do this because we can and here is a list of what this does not mean. When will the Christian part of the US be established with its own laws based on some version of the Bible unless is becomes ‘just because that is what I believe’.

Rob

June 30th, 2014

I think Alito’s omission is telling. I doubt he (and several other of the justices in the majority) would find the effort to end anti-LGBT discrimination as compelling enough to foreclose challenges to those laws.

However, Kennedy’s concurrence does give some hope that the decision won’t reach that far. He notes that in this case there was an alternative means for furthering the government’s interest in ensuring contraception coverage. (Namely, the scheme for providing coverage for women who work at nonprofits.) It’s hard to imagine an alternative to anti-discrimination law that would further its objectives. (The government is obviously not going to employ all the gay people in the country.) So the worst may not have occurred. Hopefully.

NancyP

June 30th, 2014

The legal principle seems to be that the Court majority is conservative Catholic and corporatist. Discrimination will take more than a few decades to fade. We still don’t have an Equal Rights Amendment, and that covers over half of the U.S. population.

Timothy Kincaid

June 30th, 2014

I think that Alito cannot address issues relating to the Federal government’s efforts to prohibit discrimination on the basis of sexual orientation in private companies for one specific reason: Congress has made no such efforts.

Timothy Kincaid

June 30th, 2014

Dennis W,

The principle is this: a closely held corporation is a legal structure that, in many ways, is indistinguishable from its owners.

The Mennonite cabinet maker who was part of the lawsuit is not some distant shareholder in an entity which has no relationship to his life. He, for many practical purposes, IS the company.

This lawsuit helps clarify where the owner stops and the business begins. And it says that to compel a closely held business to violate the sincere religious beliefs of the hands-on owner of the business is a violation of that owner’s constitutional rights.

Rob

June 30th, 2014

Timothy,

While Congress has made no effort to ban sexual orientation discrimination, it has banned discrimination on the basis of sex, religion, age, and disability. Alito mentioned none of these. Moreover, there is very little in Alito’s history that suggests he shows the slightest degree of deference to efforts eliminate discrimination against LGBT people.

Also this decision most definitely does not say that to “compel a closely held business to violate the sincere religious beliefs of the hands-on owner of the business is a violation of that owner’s constitutional rights.” This is a statutory case, not a constitutional one. As bad as the decision is, the premise underlying your statement would be immeasurably worse.

Eric Payne

June 30th, 2014

The problem I have with today’s Hobby Lobby ruling is pretty simple: Once an exemption is made, that exemption can only expand.

Until sometime in the 1980s/1990s, both the Coors Brewing Company and Marriott Hotels were for-profit, multi-national industries in both scope and profit. But both were, respectively, “closely held” in that all stock was held by family members of the founders of those corporations, and the families were ardent in their belief of their respective faiths. If that were still the case today… would those companies have qualified under today’s ruling?

And what if, two years from now, Hobby Lobby doesn’t want to pay for defendant insurance coverage in states where marriage equality exists? Surely, today’s ruling can be cited as, if not as precedent, at least as a showing of reasonably believing Hobby Lobby would have reason to believe they were exempt.

The RFRA was passed, originally, as nothing more than a facile way to appease the GOP base of evangelicals. It was Congress’ way of saying:”Hey, look! No one can force you to do anything you don’t want to do!” Instead, it’s become a force for those evangelicals — now splitting from the GOP in favor of the Tea Party — to force others to do what they want them to.

Bets now on how long it takes for a caterer, or a photographer, or an event planner to use Hobby Lobby to justify refusal of service to a same-gender couple’s wedding.

L. C. Burgundy

June 30th, 2014

This is what happens when you inject corporations into health care and turn them into the government’s bagmen – you get interference with your policy goals. There shouldn’t be an honest soul left alive happy with the Congressional health care sausage of 2009-2010 at this point. Single payer should have gotten an up or down vote and then we should have all gotten on with our lives. That would have avoided this entire debate. Even now, single payer nationwide contraceptive/abortifacient coverage is but a congressional vote and a presidential stroke of the pen away.

And personally, I think free birth control and equal rights for all citizens aren’t quite the same thing, but that’s just me. We didn’t have national ENDA before this ruling and we won’t have it after.

Merv

June 30th, 2014

The problem is RFRA. Those who passed and supported it were incredibly naive if they thought its effect would be limited to peyote ceremonies by native Americans. The result we are seeing today was easily predictable, and, of course, is why the Christians are pulling out all stops to enact RFRAs at the state level. They know they can use it to enforce the three main tenets of the dominant strain of Christianity practiced in the US today: Opposition to homosexuality, opposition to abortion, and opposition to birth control. Our legislative priorities must now expand to include repeal of all RFRAs at the federal and state level.

In addition, we must oppose all legislation containing legal boilerplate which defines “person” to include for profit corporations and similar entities. If corporations are proposed to be included in legislation, then it should be justified on a case-by-case basis, not automatically assumed as a matter of course.

Steve

June 30th, 2014

>”or the sincerity with which an asserted religious belief is held”

Uh, this is exactly something which courts should take into consideration. Often it’s easily noticeable when people are just hypocrites or when they use religion merely as an excuse.

This horrendous decision is based on nothing. Certainly not legal precedent. They started from a pre-determined conclusion and then made up some weak excuses.

Jack

June 30th, 2014

@ Timothy Kincaid:

You wrote: “[A] closely held corporation is a legal structure that, in many ways, is indistinguishable from its owners.”

This is incorrect.

Businesses incorporate precisely in order to explicitly distinguish the business from the owners. Whether a business is “closely held” or Exxon-size is legally irrelevant. In both cases the owners/shareholders of a corporation gain liability protection against lawsuits/judgments.

If Hobby Lobby sells me something that harms me in some way and I sue and win, the owners of Hobby Lobby are not personally liable to me; Hobby Lobby the corporation is.

What the Hobby Lobby case has now done is to give business owners their cake and let them eat it too.

Steve

June 30th, 2014

“closely held” has nothing to do with size. Mars Inc. and Cargill are family owned. They have revenues of 33 billion and 135 billion a year.

Richard Rush

June 30th, 2014

Today’s lesson:

If you own a business, and want to enjoy preferential treatment and special rights/exemptions, you need to latch onto one of society’s widely recognized and respected belief systems based upon fabricated fantasies and superstition. (Note: Be careful ~ if your beliefs are supportable by evidence or facts, you will be disqualified) Then, all you need to do is simply claim that you sincerely hold those beliefs. And, voila!, you qualify!

FYoung

June 30th, 2014

Timothy: “I think that Alito cannot address issues relating to the Federal government’s efforts to prohibit discrimination on the basis of sexual orientation in private companies for one specific reason: Congress has made no such efforts.”

I respectfully disagree. Congress certainly has prohibited sex discrimination, yet it did not stop Alito from deciding that sex discrimination by an employer is allowed when a religious special right to discriminate is claimed. To discriminate against birth control means used only by women (contraceptives Plan-B and Ella) is sex discrimination in the same way that a tax on yarmukles is a tax on Jews.

If the legal fictions that corporations are people and have any religion other than profit, gives them rights that trump those of actual, living women despite laws prohibiting sex discrimination, then this decision definitely shows that SCOTUS is ready to erase LGBT rights whenever religious special rights are claimed.

Rob: “While Congress has made no effort to ban sexual orientation discrimination, it has banned discrimination on the basis of sex, religion, age, and disability. Alito mentioned none of these. Moreover, there is very little in Alito’s history that suggests he shows the slightest degree of deference to efforts eliminate discrimination against LGBT people. ”

Well said, Rob.

Eric Payne: “Bets now on how long it takes for a caterer, or a photographer, or an event planner to use Hobby Lobby to justify refusal of service to a same-gender couple’s wedding.”

Before the week is over, I’d say.

charlie

June 30th, 2014

This is another ruling like Citizens United that is going to smell worse than dog crap in the cold hard light of history.

charlie

June 30th, 2014

This is another ruling like Citizens United that is going to look worse than dog crap in the cold hard light of history.

BenYachov

July 1st, 2014

It seems rather simple to me.

I can’t force my employer against his or her will to pay a Stipend to a Catholic Priest to have a Mass said for either me or the souls of my dead relatives.

So if you work for me why should you be able to force me to buy or provide Birth Control for you against my Catholic beliefs?

Go to TARGET pay about $9 a month and get your own sin pills and leave me out of it.

Get your ovaries off my Rosary and I will in turn not force you have Masses said for my soul if you are against it on the grounds of your non-Catholic religious objections or you are an Atheist who objects to being forced to participate in my “delusional superstition” against his or her will.

As Eve asked Adam “Why is that hard?”.;-)

Ben in oakland

July 1st, 2014

Well, Ben Yachov, you are starting with at least two false premises. but here is the important one.

1)that you are paying for anything other than an insurance program. Other people are quite capable of determining for themselves what is medically necessary according to their own spiritual beliefs and sound medical practice.

Eric Payne

July 1st, 2014

Want to know what could be next, post-Hobby Lobby?

Chick-Fil-A is a “closely held” corporation that has a history of corporate animus toward gays, and has publicly cited the religious beliefs of the owners when publicly acting on that animus.

Dan Cathy had been publicly chastised during the Prop 8 campaign for his corporation’s support of Prop 8, and the revelations Chik-Fil-A had been created a charitable trust contributing to anti-gay measures nationwide.

In the past year, Chik-Fil-A has “backed off”… but only because Cathy’s determination to expand into areas like NYC was thwarted by local politicians/authorities with the power to withhold licenses.

Now, citing “religious belief,” (which was always the justification Cathy used in Chik-Fil-A’s animus) will Hobby Lobby be used against those local politicians/authorities who are slowing down the company’s expansion?

Richard Rush

July 1st, 2014

I hope that someone or some organization will maintain a regularly updated list of companies that are implementing their newly created special exemption . . . so that people can make an informed decision on where to spend their money.

jerry

July 1st, 2014

This is the first ruling that shows the need to get businesses out of the healthcare field. Single payer Medicare style healthcare for everyone based on their ability to pay.

I big thanks to Sleazy Sam.

Priya Lynn

July 1st, 2014

Dennis W. said “What exactly is the legal principle upon which this decision rests? Company = person? or we wanted to do this because we can”.

Timothy said “The principle is this: a closely held corporation is a legal structure that, in many ways, is indistinguishable from its owners.
This lawsuit helps clarify where the owner stops and the business begins. And it says that to compel a closely held business to violate the sincere religious beliefs of the hands-on owner of the business is a violation of that owner’s constitutional rights.È.

Nonsense. People are allowed to set up corporations to limit their liability and their liability is limited precisely because the corporation is considered separate from the owner. This ruling is incoherent as it says a corporation is seperate from the owner when the owner wants to be seperate and the corparation is the owner when the owner wants it to be – logically you can’t have it both ways. If you want to limit your liability by declaring the corporation is an entity seperate from you then you can’t then claim that corporation has religious rights.

Dennis had it right, this decision is not based on any legal principle, it was done because they wanted to do this because they could. Note in particular how Scalia’s ruling in this case contradicts the ruling he gave in the case where American Indians wanted to use an illegal drug in their religious ceremonies. Then Scalia said:

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. … Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
“To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself,” Reynolds v. United States, 98 U.S. at 167 — contradicts both constitutional tradition and common sense.”

The other judges are just like Scalia, there aren’t guided by legal principles, they’re there to implement their religious conservative agenda and they have no problem contradicting their past rulings to do so.

L. C. Burgundy

July 1st, 2014

jerry, the first ruling? Employers should have never been in the health care insurance game. Congress’s 70-year love affair with entangling corporations and people’s health care choices will continue to prove stupid as long as we continue to insist on doing it.

NancyP

July 1st, 2014

Are women human? Apparently not, in many people’s minds.
This is why we need the Equal Rights Amendment, as well as ENDA legislation.

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