The Hobby Lobby ruling is, no doubt, bad news for women and for anybody who cares about women’s health care. But in an attempt to narrow the ruling’s effect, the conservative majority makes a surprising concession—one that could be good news for gay people.
That’s because the Hobby Lobby case was never just about birth control. Lurking in the background of the litigation was an open question about employers that might also cite their religious beliefs to discriminate against gay people, even where the law forbade it. Hobby Lobby’s argument, taken at its broadest, would seem to allow this. It argued that the Religious Freedom Restoration Act, which prevents the government from “substantially burden[ing] a person’s exercise of religion”—as well as the First Amendment’s free exercise clause—guaranteed employers sweeping authority to violate laws that went against their sincerely held religious beliefs.
What kind of laws might violate religious employers’ religious principles? After birth control coverage, the most obvious candidate is an LGBT anti-discrimination ordinance. Liberals have been fretting for months that a pro-Hobby Lobby ruling could undermine such laws, allowing any purportedly religious employer to violate them with impunity. The question suddenly emerged as a dire threat as florists, bakers, and photographers have claimed a religious right to break state law to discriminate against gay couples, and state after state proposed their own riffs on RFRA. The issue became a minor cause célèbre among conservative commentators, and, as the Hobby Lobby ruling approached, gay rights advocates braced for the apocalypse.
But on Monday morning, the apocalypse didn’t come. In fact, quite the opposite: In its ruling for Hobby Lobby, the court—in an opinion authored by arch-conservative Justice Samuel Alito—explicitly stated that RFRA could not be used as a “shield” to “cloak … discrimination in hiring” as a “religious practice to escape legal sanction.” RFRA doesn’t permit employers to break a law when there is a compelling government interest backing that regulation, and, according to Alito, the government “has a compelling interest in providing an equal opportunity to participate in the workforce.”
Alito cites racial discrimination in his opinion. But Justice Anthony Kennedy, in a concurrence, cabins the court’s ruling even further, making clear that the majority isn’t rewriting RFRA (or the First Amendment) to protect anti-gay discrimination. Kennedy denies that the opinion is a startling “breadth and sweep,” noting that this case could easily be “distinguish[ed] ... from many others in which it is more difficult” to strike a balance between legal regulations and “an alleged statutory right of free exercise.” While religious liberty may permit employers to exercise their own beliefs to a point, “neither may that same exercise unduly restrict … employees in protecting their own interests.” Translation: This case is about birth control and nothing more—and as a general rule, employees still have a compelling interest in most laws that protect their rights.
Why do both justices go out of their way to quell the fears of gay rights advocates? Easy: Because progressive folk hero Justice Ruth Bader Ginsburg all but forces them to. Ginsburg takes the subtext of the case—does religious liberty allow anti-gay discrimination?—and places it at the forefront, throwing the infamous lesbian wedding photography case directly in the majority’s face. “Would RFRA require exemptions in cases of this ilk?” she asks. “And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not?”
In responding to Ginsburg, the court goes as far as it properly can to disarm her argument, not just kicking the discrimination question down the road but quietly defusing its power by suggesting such claims wouldn’t be compelling enough to survive. In doing so, the court may have forestalled a new round of litigation over gay rights versus religious liberty—or, at the very least, suggested that it wouldn’t seriously entertain freedom-to-discriminate claims. On an otherwise dark day for progressives, that’s a revelation worth celebrating.
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