The Hobby Lobby ruling: What next?

By | November 26, 2014

imagesCould the Supreme Court’s ruling in the now-infamous Hobby Lobby case lead to companies using religion as a way to deny benefits to LGBT people?

In the Hobby Lobby decision, the Supreme Court was asked to strike a balance between women’s rights and religious freedom. In doing so, with an opinion penned by Justice Samuel Alito, the Supreme Court ruled that “closely held corporations” can decline to provide coverage for birth control in the health care plans they offer to their female employees if the coverage would violate the owners’ religious beliefs.

Most expected that the disastrous opinion would create an outcry among feminist groups but before that could happen a firestorm erupted between religious groups and gay rights advocates. The resulting controversy has split gay-rights and faith groups down the middle and potentially irreparably damaged a recent growing partnership between gay-rights groups and religious leaders.

In the end, the Hobby Lobby decision will have far-reaching effects, unintended consequences — and likely not just in the realm of women’s rights or LGBT equality.

From a jurisprudential angle, the most significant issue with the opinion on its face is that no one is exactly sure what Justice Alito means when he says “closely held corporation” for purposes of the Hobby Lobby decision as it is not defined anywhere in his opinion. Alito could have been relying on the 50-state survey or treatise identifying state corporate law statutory and/or case law definitions of closely held corporations.

There are large discrepancies in how to define a “closely held corporation” — just compare Delaware, Massachusetts and New York for example, and not to mention the IRS definition or the securities law analog for both 33 and 34 Act purposes.

To put things into perspective, depending on how a “closely held corporation” is defined the following could be considered under the rubric of the Hobby Lobby opinion: Koch Industries,ComcastWal-Mart, Bechtel, Cargill, Publix, Pilot Corp., Deloitte Touche Tohmatsu, Hearst Corp., S. C. Johnson, and Mars. The 339 companies on Forbes’ survey of closely held U.S. businesses sold a trillion dollars’ worth of goods and services (44 percent) and employed 4 million people.

Regardless of how it is defined, I’m pretty sure at least one or two gay people work at a closely held company.

Within days of the Hobby Lobby ruling, 14 religious leaders sent a letter urging PresidentBarack Obama to include broad exemptions similar to that contained in the current version of the Employment Non-Discrimination Act in an executive order he ultimately signed that prohibits contractors doing more than $10,000 worth of business with the federal government from discriminating on the basis of sexual orientation and gender identity — including transgender individuals. The most prominent signee of the letter was Pastor Rick Warren, who gave the invocation at Obama’s first inauguration but has since criticized most of Obama’s actions as they pertain to the LGBT movement for equality.

That was just the beginning. Shortly thereafter Obama received yet another letter signed by more than 100 religious leaders asking him to “respect this vital element of religious freedom” by exempting religiously affiliated groups from adhering to the LGBT antidiscrimination protections contained in the executive order.

Workplace discrimination has been a major issue for gay and civil rights advocates for years. Congress took up the issue last year with the introduction of the Employment Non-Discrimination Act (ENDA), which would forbid discrimination based on sexual or gender identity, but includes an exemption for religious entities including hospitals, universities, and nursing homes.

In the end, the executive order Obama signed struck a good middle ground. It maintained the narrow exemption already in federal law, which states that religious groups that contract with the government can make religion a condition of hiring, but it did not include the broader religious exemption that would allow nonprofit contractors to refuse employment to LGBT individuals if they viewed it as inconsistent with their faith. The United States has been largely preoccupied with the fight for gay marriage in the last couple of years. However, while marriage equality is an important and fundamental issue worth fighting for, at the end of the day not everyone wants to get married but 99.99 percent of Americans have to go to work. Yet in most states, including Pennsylvania, LGBT individuals can be unilaterally and summarily fired, discriminated against and harassed simply for being gay; for being their authentic self. Regardless of your religious beliefs, that is not the social framework or democratic values we founded this country on.

As a country we have made significant progress in the last 10 years or so on bringing about mainstream acceptance of LGBT issues; most recently led by our pioneering and courageous Pope Francis. Gay-rights groups and religious leaders and institutions have been finding ways to see common ground while respecting their differences. In so doing, gay rights has gained acceptance and the teetering churches’ image is seen as more accepting and “church-like.”

Now, it may be tempting to view the Hobby Lobby case as significant only in women’s or gay rights issues. But the reality is that this holding will have far-reaching effects. Health and employee benefits will be open for attack, whether religiously affiliated and not. Consumer protections, especially those related to sexual orientation — which already face court challenges — will become even more vulnerable. I’m not sure it’s even possible but if the Hobby Lobby decision is not narrowed and curtailed, the next 10-20 years will be an unfortunate battle between people attempting to preserve religious liberty for all and others attempting to gain equal rights under the constitution.

Bigotry disguised as religious liberty is still bigotry. So, instead of battling, let’s find a way to respect diversity in a way that respects the dignity of all parties.

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