- June 30, 2014
Original post appeared in the American Constitution Society Blog
Today, the U.S. Supreme Court issued a ruling in two cases, Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties Corporation v. Burwell (Hobby Lobby), in which the Justices were asked to decide whether requiring a corporation to provide insurance coverage that includes contraception under the Affordable Care Act (ACA) is a “substantial burden” on the corporation with religious objections, and whether corporations are covered by the Religious Freedom Restoration Act of 1993 (RFRA). The Court ruled that closely held for-profit corporations are exempt from complying with the ACA contraception mandate based on religious belief under RFRA.
The lesbian, gay, bisexual, and transgender (LGBT) community watched this decision with bated breath. Though ostensibly about birth control, the potential ramifications of this case could have been far-reaching. Religious beliefs have long been used as a basis to deny LGBT people access to basic civil rights. In the past year alone, more than a dozen states contemplated passing laws that would have permitted business owners to deny LGBT people services if the owner cited religious reasons for their actions. In her dissent, Justice Ginsburg expresses her concern that Hobby Lobby could lead to RFRA being used to permit discrimination against minority groups including LGBT people.
Yet, in what is otherwise a very damaging decision, the Court expressly attempted to limit the implications of this ruling by explaining, “The principled 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. Our decision today provides no such shield.” Justice Alito may have chosen race to illustrate his point, but the significance for the LGBT community is clear—employment non-discrimination laws are “precisely tailored to achieve that critical goal” of equal opportunity. Hobby Lobby will NOT serve as a free pass to utilize religion as a means of avoiding laws with which business would rather not comply.
Further underscoring the limited implication for laws prohibiting discrimination, the Court chose to deny certiorari to two cases that could have had widespread implications for laws designed to protect LGBT people: Elane Photography v. Willock and Pickup v. Brown.Elane Photography revolved around a New Mexico law prohibiting discrimination on the basis of sexual orientation in public accommodations while Pickup challenged a California law banning “conversion therapy” for youth. In both cases, the plaintiffs claimed the laws designed to protect LGBT people impinged upon their religious and free speech rights. The New Mexico Supreme Court and the United States Court of Appeals for the Ninth Circuit, respectively, rejected these claims. Coupling the clear language of the Supreme Court inHobby Lobby regarding discrimination with the Court’s denial of certiorari, it seems clear that at a minimum, the Court is not anxious to meddle with long standing principles of non-discrimination. The Court issued its order denying certiorari in Pickup only minutes before handing down the Hobby Lobby decision.
Despite the limitations, some members of the LGBT community will feel the immediate effects of this decision. It is easy to forget that many in the LGBT community have a real need for access to birth control, particularly lesbians, bisexual women, and transgender men. Without coverage as part of their insurance plan, many in these groups will not be able to easily address a range of health problems such as abnormal menstrual cycles, polycystic ovary syndrome, or even rare blood diseases. In addition, members of the LGBT community want to access birth control for family planning purposes. Bisexual people comprise a slight majority of the LGB community and most bisexual people want to utilize birth control at some point—even those who will choose to have children at a later date.
With regards to non-discrimination laws, the Court is clear that Hobby Lobby should not be read to open up questions about their applicability to corporations with religious owners. Nevertheless, LGBT and allied organizations must remain vigilant in the event business owners attempt to use this decision to justify other forms of discrimination, including against LGBT people.