Box Turtle Bulletin

What Does the Hobby Lobby Decision Mean For LGBT People?

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.