It’s not just about birth control.
When the Supreme Court ruled last week that closely held corporations like Hobby Lobby wouldn’t have to cover the cost of contraception because of sincerely held religious beliefs, it didn’t take long for many to see the coming storm. If companies are allowed to treat women differently in access to health care, after all, what’s to stop them from discriminating against LGBT individuals based on the same religious grounds?
In the fight over LGBT rights, the Hobby Lobby decision is already beginning to do three things: embolden supporters of so-called religious freedom bills in several states; encourage the push for a religious exemption in executive protections for LGBT employees; and put backers of the Employment Non-Discrimination Act (ENDA) in a position where they feel they have to withdraw support.
While widespread opposition last legislative session managed to kill more than a dozen measures across the country that if passed would have allowed broad anti-gay discrimination, the Hobby Lobby ruling has offered supporters of such bills a glimmer of hope for next year.
“I do think that ruling will have a major impact,” said the Rev. Terry Fox, a Southern Baptist minister in Wichita, Kansas, and a leader of the successful movement to ban same-sex marriage in that state. “The Supreme Court has given a strong statement that people have a right in business if they have religious convictions to take a stand.”
Fox is now focusing on getting a religious freedom bill, which resembles the federal Religious Freedom and Restoration Act (RFRA) through the Kansas legislature.
RFRA, passed in 1993 and signed by President Bill Clinton, carved out an exemption in federal laws that would substantially burden someone’s free exercise of religion, unless the law in question addressed a compelling government interest and was the least restrictive way of accomplishing that goal. In the Hobby Lobby case, the Supreme Court determined that the mandate for contraceptive coverage under the Affordable Care Act failed to meet that high bar.
If passed, the Kansas bill would build off an existing state RFRA and shield businesses that choose to turn away gay people on religious grounds. House Bill 2453, which passed the Kansas House of Representatives earlier this year, was one of many religious freedom measures sweeping legislatures across the country, and igniting a torrent of criticism along the way.
The movement was spurred in large part by high-profile discrimination claims, such as one in Colorado – where a baker refused to make a wedding cake for a same-sex couple – and one in New Mexico – where a photographer refused to shoot a same-sex commitment ceremony. Both business owners lost in court, having violated the states’ non-discrimination laws.
Unlike Colorado or New Mexico, however, Kansas does not provide statewide protections for LGBT individuals. That means that as of now, there is no non-discrimination law based on sexual orientation or gender identity in the state with which to have a religious objection. But opponents believe the proposed bill’s language would invite broad discrimination in virtually every aspect of a person’s life, and allow government officials to ignore legally valid same-sex marriages, should the state’s ban on such unions fall.
“If we’re going to lose the marriage amendment, then we’re going to need some other laws,” said Fox.
While Kansas is deeply conservative, lawmakers there have failed to pass a religious freedom bill the last four years in a row due to vocal opposition among the state’s business owners and civil liberties advocates. Similar backlash reached a fever pitch in Arizona last legislative session, prompting Republican Gov. Jan Brewer to veto that state’s version of the bill. After that, religious freedom legislation fizzled out in every state but Mississippi, where it went into effect on July 1.
Today, Fox believes that the Supreme Court’s Hobby Lobby ruling, which affirmed RFRA at the expense of Obamacare’s contraceptive mandate, will turn the tide.
“I had the opportunity to meet with the leadership in Kansas, and I do believe we will get a similar bill passed this coming year,” he said. “We have a history in Kansas when churches come together that we can influence our legislature.”
“I think if the legislature wants to wade into this fight for the fifth year in a row, they’re welcome to try to make the case,” said Tom Witt, executive director of Equality Kansas. “They learned a hard lesson this winter that when you advocate for open discrimination against anybody, the public is not going to stand for it.”
Kansas may not be the only state to see a rematch in the religious freedom fight.
“I think it’s a certainty that states will run with this, that some other courts will adopt wide-ranging views of the significance of Hobby Lobby, and that there will be tremendous damage attempted not just to other forms of birth control, but to issues like LGBT rights,” said Barry Lynn, executive director of Americans United for Separation of Church and State and one of the original architects of RFRA.
Along with many other progressives at the time, Lynn intended RFRA to be a shield against government interference in religious liberty, not a sword – shrouded in religion – to use against others.
“This is a real Pandora’s box with some ugly critters coming out of it already,” Lynn said.
Justice Samuel Alito, who wrote the 5-4 majority opinion in the Hobby Lobby case, stipulated that the decision “should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs.” But Justice Ruth Bader Ginsburg warned in her dissent that the court had “ventured into a minefield,” one that could allow corporations to opt out of any law deemed “incompatible” with their religion.
Debate over the ruling’s scope intensified days later when the Supreme Court granted emergency relief – an extremely rare event – to Wheaton College, ensuring that the evangelical school wouldn’t have to fill out a form certifying its moral objection to contraception so that the insurer could provide coverage to women directly. The opt-out form, which the Obama administration set up for religiously-identified non-profits, amounted to a “permission slip for abortion,” the college’s attorney stated, even though preventing the implantation of a fertilized egg is not the medical definition of abortion.
All of a sudden, the “startling breadth” Ginsburg had flagged in her Hobby Lobby dissent was on full display.
Still, not everyone agrees about the ruling’s scope and – by extension – its impact on state RFRAs.
“Hobby Lobby is a very narrow decision,” said Douglas Laycock, a law professor at the University of Virginia and a supporter of religious freedom bills, via email. “I start there by way of explaining that the reaction to the decision on the left has been an extreme overreaction. But that reaction means that it will be more difficult, not easier, to pass state RFRAs.”
Religious freedom bills aren’t the only area where the Hobby Lobby ruling could impact LGBT Americans. A day after the decision came down, a group of more than a dozen high-profile faith leaders sent a letter to the White House asking for a religious exemption in President Obama’s forthcoming executive orderthat will ban federal contractors from discriminating on the basis of sexual orientation or gender identity.
Michael Wear, who was the National Faith Vote Director for Obama’s 2012 campaign and one of the letter’s signatories, told msnbc it had “absolutely zero to do with Hobby Lobby.”
“We started the letter several weeks before the Hobby Lobby decision came down,” he said. The goal is to “tell religious groups that that they can organize around religious principles and still partner with the federal government.”
But Rev. Dr. C. Welton Gaddy, president of Interfaith Alliance who signed a counter-letter with 100 other faith leaders that urged President Obama to leave out a religious exemption, told msnbc he sees more of a connection.
“Whatever the timing, the simple issue both with the Hobby Lobby case, and with the president’s executive order is a religious exemption. That’s just a fact,” he said. “I can’t help but think that with the Wear letter, they felt they had more clout because of the Supreme Court decision that came down. Many of the rest of us felt fear because of what the Supreme Court had done.”
A number of groups have also dropped support for a version of the Employment Non-Discrimination Act (ENDA) that passed the U.S. Senate last year. The bill, which would bar any employer from discriminating on the basis of sexual orientation or gender identity, included a broad religious exemption more sweeping than one in Title VII of the 1964 Civil Rights Act, on which ENDA was modeled.
Earlier this week, top LGBT advocacy groups, citing Hobby Lobby, withdrew their support for ENDA. The groups included the National Gay and Lesbian Task Force (NGLTF) Action Fund, the American Civil Liberties Union (ACLU,) the Gay & Lesbian Advocates & Defenders, Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center.
“Frankly, it is becoming harder and harder for me, for us, to tolerate our own moral and political inconsistencies by protesting the Hobby Lobby decision, then advocating for the current ENDA with its broad religious exemption, and then insisting that the president not include a broad exemption in the upcoming executive order protecting LGBT people working for federal contractors,” wrote Rea Carey, executive director of the NGLTF Action Fund, in an op-ed for The Advocate. “How can we demand that a woman have coverage for reproductive healthcare at a company but support a bill that allows a lesbian cafeteria worker in the religiously affiliated hospital next door to be fired from her job?”
“We cannot be complicit in writing such exemptions into federal law,” she said.