June 30, 2014 | by Chris Johnson
Hobby Lobby ruling assailed
Hobby Lobby, gay news, Washington Blade

(Photo by DangApricot; courtesy Wikimedia Commons)

The U.S. Supreme Court’s decision in the Hobby Lobby case on Monday brought criticism from LGBT rights supporters for restricting access to contraception, but advocates acknowledge the narrow scope of the ruling shouldn’t lead to companies invoking it to justify anti-LGBT workplace discrimination.

In a 5-4 decision penned by U.S. Associate Justice Samuel Alito, justices ruled in the case of Sebelius v. Hobby Lobby that the Religious Freedom Restoration Act enables closely held for-profit corporations whose owners oppose contraception to continue to deny it for religious reasons, despite the mandate requiring employers to provide this coverage under Obamacare.

“We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest,” Alito writes.

Rea Carey, executive director of the National Gay & Lesbian Task Force, said the decision represents a “dangerous precedent” and that allowing employers to restrict access to contraception leaves women “in limbo.”

“Under the ruling, some corporations will be treated like religious institutions and these so-called ‘religious corporations’ will not have to pay for health care that they disagree with,” Carey said. “So what happens if a woman needs birth control and their employers won’t pay? What happens if a trans woman needs hormones and their bosses won’t pay? What happens if a couple needs fertility treatments and the ‘religious corporation’ they work for won’t pay? Yet again, another barrier put in the way of vital and affordable health care.”

But Alito suggests in his ruling that the Obama administration can set up for employees who seek contraception coverage and work for closely held for-profit corporations the same system already in place under Obamacare for employees who work at religious organization and seek contraception.

Moreover, Alito emphasizes the ruling is limited to contraception and doesn’t allow closely held for-profit corporations to opt out of any law they choose.

“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,” Alito writes. “Our decision today provides no such shield.”

Despite the unprecedented nature of the ruling, LGBT advocates breathed a sigh of relief in respect to its narrow ruling. LGBT rights supporters feared a broader decision could have enabled companies to engage in religious-based anti-LGBT discrimination.

Rose Saxe, a senior staff attorney with the American Civil Liberties Union’s LGBT Project, affirmed that the ruling shouldn’t directly have an impact on LGBT rights.

“Using the example of course of race discrimination, we believe that there’s an equally compelling interest in ending LGBT discrimination,” Saxe said. “So, that decision should not give an avenue for employers to engage in broader kinds of discrimination.”

Nonetheless, fears persist among many LGBT advocates that the decision could open the door for the Supreme Court to allow anti-LGBT discrimination in a later ruling.

Heather Cronk, co-director of GetEQUAL, was among those predicting additional rulings from the Supreme Court along the lines of the Hobby Lobby decision.

“The same entities that are fighting women’s access to healthcare are also fighting LGBTQ equality — and this ruling simply sets the stage for future efforts to reduce the ability for individuals to make their own decisions about their lives and about their bodies,” Cronk said. “Today’s ruling sets the stage for further and wider challenges to the idea that employers should treat all of their employees and potential employees equally, and opens the possibility for employers to refuse to provide employees with health insurance that covers HIV or AIDS medication, blood transfusions, anti-depressants, and all manner of other life-saving care.”

After President Obama announced his intent to sign an executive order barring LGBT workplace discrimination among federal contractors, there was speculation the administration was waiting for the Hobby Lobby decision to determine whether a religious exemption would be necessary for the order.

LGBT advocates have insisted that the executive order be free of any special carve-outs to allow LGBT discrimination among federal contractors.

Now that the court has handed down the decision, the White House still has yielded no information about the specific content of the executive order. On the day of the decision, Shin Inouye, a White House spokesperson, said, “I don’t have any details to share about the specifics of an executive order.”

Because of the narrow scope of the Hobby Lobby ruling, Saxe maintained the decision shouldn’t compel the administration to include a religious exemption in the executive order.

“With the [federal] contractor EO, the government has a compelling interest in eradicating LGBT discrimination in government-funded jobs, and there really isn’t any other to deal with it,” Saxe said. “If it were to let these kinds of business to discriminate, it would open up and weaken those job protections that the executive order is designed to express.”

In other news from the Supreme Court on Monday, justices announced they will decline to hear litigation known as Pickup v. Brown, which challenges California’s ban on “ex-gay” therapy for minors. The U.S. Ninth Circuit Court of Appeals last year upheld the constitutionality of the law, which was signed by California Gov. Jerry Brown.

NOTE: This post has been updated.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

1 Comment
  • RFRA will be used as an excuse in the future to attempt to deny recognition of same sex couples at the workplace, extending them employer subsidized healthcare coverage for their spouses and a pretext for not hiring GLB people as it would require them to provide such benefits when that goes against their faith. You’ll see. Until the SCOTUS recognizes a compelling interest in preventing anti-gay discrimination in all areas, litigation will persist.

    Still one can be grateful that Alito surprisingly in this case said the scope of the ruling is limited and can’t be used to discriminate against race, which by extension can imply GLTB people, too.

    I still think we have to accept that outlawing discriminating in hiring at certain religious institutions, universities and political groups is going to impede achieving greater acceptance for things like ENDA among more conservative members of Congress. Why do we need to work for Liberty or Brigham Young University for example when we know those institutions primarily promote policies against GLBT people and when we have secular alternatives?

    Just because you bend doesn’t make they can break you. Compromise is often necessary. All or nothing thinking is no different than religious conservatives who refuse to accept legal recognition of gay relationships. It’s often not a winning strategy.

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