The Hobby Lobby decision is obviously a huge blow to women’s reproductive rights, but there are fears that this ruling may also be corrosive to LGBT rights. Are these fears justified? Or is the decision, for the short term at least, largely benign when it comes to LGBT rights?
The Hobby Lobby Decision: An Overview
We have an expansive post on the Hobby Lobby decision here, but if you’re short on time: the Supreme Court ruled 5-4 that Hobby Lobby, an Oklahoma-based arts and crafts chain, and Conestoga Wood Specialties, a furniture business from Pennsylvania, cannot be compelled to pay for four different kinds of contraceptive pill it deems “abortifacients” because of the companies’ (and yes, I do mean “the companies’”) “sincerely-held” religious beliefs. The decision strikes the Affordable Care Act’s contraceptives mandate in this narrow regard, saying that while the HHS’s interest in this area isn’t unjustified, the actual contraceptive mandate is an unfair burden on religious rights and therefore is unlawful.
The Court’s majority stressed at multiple points during their ruling that this is a very narrow exemption, but critics charge, among them the measured yet uncompromising Justice Ginsberg, that the court has effectively enshrined the personhood of corporations above the right for women to access contraceptive and sexual health care from their employers.
Critics also point out that the notion of “abortifacient” contraceptives is one that has been carefully hijacked by anti-choice activists that has little grounding in actual science.
These are all issues that are being dissected and discussed, and no doubt they will be for some time. What the impact will be on LGBT rights is also being debated, and the impact is somewhat unclear.
How Does the Hobby Lobby Decision Affect LGBT Rights Now?
In the short term, the decision is unlikely to have a significant impact on the LGBT community. In fact, the Supreme Court appears to have gone out of its way to undercut possible attempts at using this decision in other areas.
For instance, the majority decision clearly states:
This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.
We are therefore given to understand that the decision cannot be used, say, to endanger HIV medication coverage (for instance PrEP), gender transition related coverage, or anything of that nature. It also can’t be used as a platform to mount other claims about religiously motivated discrimination, such as the right to refuse to recognize same-sex marriages.
That’s what the majority is claiming, and while that certainly might be true in the short term, some LGBT groups are concerned about the future implications of this decision, and there are voices in the Supreme Court who think they are right to do so.
Hobby Lobby: A Bad Precedent for Future Claims?
Justice Ginsberg, in her exacting and methodical dissent written for the minority, writes that while the majority might protest, it has effectively supercharged the Religious Freedom Restoration Act (RFRA) for future religious rights exemption claims:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.
Now, this quote is being hotly contested by some who say that the majority qualified its ruling very carefully. Ginsberg disagrees though, and whether she’s right in all other areas or not, there does appear to have been a conversation regarding whether the RFRA can be invoked to justify racial, ethnic, or sexual orientation discrimination, and on the latter the decision does seem to be lacking.
Ginsberg forces the court to address sexual orientation square on, taking the recent case of a wedding photographer refusing to photograph a lesbian couple. She asks whether the RFRA could be used to exempt businesses in cases like these, “And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not?”
The majority says that, with state and federal anti-discrimination laws in place, such claims wouldn’t survive in the courts and therefore the conversation is over. It’s as simple as that. Yet it isn’t. While Ginsberg does include sexual orientation in her minority opinion, the majority does not and that absence is quite telling. It shows that the Supreme Court’s majority believes that there are adequate protections for existing special classes, but LGBT people are not expressly or concretely among those classes. Given that a court decision is rarely if ever narrowed over time, the absence of a mention for LGBT rights seems like room for discrimination to grow, and that is a worry.
We’ve already seen concerted efforts to enshrine the right to refuse LGBTs service in Arizona and other states. What’s more, the religious right already feels emboldened by this decision, with a number of anti-gay commentators writing that this will stand them on firm ground when it comes to challenging any and all LGBT-inclusive anti-discrimination laws.
While the Supreme Court’s majority, under Ginsberg’s prodding, believes it has forestalled any sweeping round of litigation on civil rights cases for the near future, and certainly the Right will have to take time to calibrate when and how it forms an anti-gay rights challenge on this basis, that doesn’t mean the Right won’t try. Unfortunately, it seems we have to wait and see how this will play out because we don’t yet know how the lower courts will apply the so called Hobby Lobby ruling — but, that this decision will feature in the Right’s attempts to undermine LGBT civil rights now seems a foregone conclusion.
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