Ari Ezra Waldman | Law - Gay, LGBT | Obamacare | Religion | Supreme Court

Obamacare, Religious Exemptions, and Gay Rights: Hobby Lobby at the Supreme Court Today


SupremesToday, the Supreme Court is hearing arguments in a case about Obamacare. The last time that happened, the Court determined by a bare 5-4 majority that the so-called individual mandate, the requirement that everyone has to buy health insurance or pay a tax, was constitutional. Now, the Court is considering whether corporations can refuse to provide insurance plans that include contraception if doing so would violate the religious beliefs of those corporations' owners.

This matters, not just to those of us in need of health care and not just to those of us who work for companies run by religious people. It matters to all LGBT Americans because the scope of this particular religious exemption could affect the scopes of other religious exemptions.

The cases -- Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius -- will determine the breadth of the religious exemption from Obamacare. Unfortunately, the pretext of religious freedom has gained much traction of late in justifying continued discrimination. And this Court's conservative majority has set itself up to strike a blow against equality.

AFTER THE JUMP, I will construct the argument I expect the Court's conservatives will use to expand the religious exemption. I will show how that argument is deeply flawed. And then I will show how dangerous it is for the LGBT community.

We've spoken before about the donut hole that is a religious exemption to an equality law. In brief, laws that mandate equal treatment may not apply to everyone. For example, a law that requires a state to recognize a marriage between two men should not force a Catholic Church to actually perform one of those marriages if it would conflict with that Church's essential dogma. But there are other kinds of exemptions: those so-called "conscience clauses" that would allow, say, a county clerk in a marriage equality state to deny two men a marriage license simply because she thinks her religion tells her to.

The latter is problematic for obvious reasons: it uses the pretext of religious freedom to condone discrimination. The former is also problematic for a more subtle reason: a civil marriage equality law doesn't even apply to religious solemnizations of marriage; so, a church would never need an exemption from a law that doesn't apply to it. The exemption is superfluous, yes, but as an unnecessary, extraneous provision that is unique to equality laws that apply to LGBT Americans, it suggests that LGBT equality is something so extraordinarily odd that it requires overkill compensation to traditionalists.

131002191139-tsr-moos-obamacare-sign-up-glitches-00000812-story-topBut back to the Affordable Care Act for a moment. The argument for broadening the Obamacare religious exemption to include any commercial company is so strange, yet strange appears to be becoming more normal under the Roberts Court.

I can summarize the exemption argument in one phrase: corporations are people, too.

Several years ago, the Court decided in Citizens United that corporations were "persons" for the purposes of free speech. That case opened the floodgates for unlimited corporate contributions to political campaigns. But if corporations are "persons" for one part of the First Amendment (speech), it seems like they should be "persons" for another part of the First Amendment (free exercise of religion). Therefore, the argument goes, corporations, as persons, enjoy the same protections against the erosion of their religious beliefs as you and I. Forcing that corporation to provide access to contraception would violate the religious beliefs of that "person" and offend federal law; therefore, the corporation should be exempted.

And so we see how a seemingly unrelated decision about free speech can affect health care.

But the argument is rubbish. Just because one clause of the First Amendment is interpreted one way does not mean that every other clause of the First Amendment has to be interpreted the same way. If it did, our federal law would look much different than it does today. Certain clauses only apply in certain situations, to certain actors, given certain contexts. To transport one doctrine to an entirely separate area of social and legal life is too simple and just wrong.

Plus, not all organizations are the same. Already, the Administration has exempted religious institutions, but it has rightly balked at giving for-profit commercial corporations the right to use the religious exemption provision because religious dogma has nothing to do with those corporations. In other words, the Catholic Church is different than a construction company: the former deals in piety and salvation; the latter deals in two-by-fours and split level condos. If religion is the product, then maybe the exemption could apply; where religious is irrelevant to the business, you can't claim to be "religious" just because it suits you and your moral goals independent of your corporate persona.

As I have already suggested, expanding the religious exemption to for-profit corporations that have nothing to do with religion would be dangerous for the religious exemption battle brewing in the LGBT equality context. If the Supreme Court allows an arts-and-crafts business to exempt itself from having to provide contraception to its workers because its owners don't believe in contraception, then the owners of a catering hall could use that precedent to argue that they should be allowed to deny service to gay couples because they don't like gay marriages, gay persons, or gay lifestyles. It's a dangerous precedent to set.

NOTE: A version of this post originally ran on Towleroad on December 6, 2013.


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. The business owners aren't being forced to use contraception themselves. Therefore no infringement on their religious freedoms.

    Posted by: Chrislam | Mar 25, 2014 11:05:20 AM

  2. I should be a lawyer Ezra. This is exactly the same reasoning I came up with. The corporation as it's own person, must be able to show that the corporation is a Christian corporation. In that meaning that they sell mainly Christian materials, much like that of a Christian supply or bookstore. In the case of Hobby Lobby, they sell various trinkets, picture frames and other knick knacks that are not conducive of a Christian business. Therefore Hobby Lobby as its own entity does not adhere to their owner's belief construct.

    Posted by: Richard Harney | Mar 25, 2014 11:18:54 AM

  3. if the SC rules that the business owners' personhood extends to their business then we might as well do away with limited liability business structures as well. business owners' assets should then be available to liability claims against their business.

    Posted by: jed | Mar 25, 2014 12:09:48 PM

  4. For me the big issue here is that a corp could have ever changing and malleable beliefs. At any moment it could be bought, a new ceo could be appointed or its board could shift. One day it could be an evangelical Methodist and the next day an orthodox Jew.

    It is an unfair burden on employees to have to research who is running a company at any given time and what beliefs that person or persons might have.

    Now the other VERY IMPORTANT issue that isn't really getting discussed is that there is no scientific basis for Hobby Lobby's position. Contraception is not abortion. And this is really about abortion. So even if Corps do have religious beliefs, there is no actual basis for them denying it other than Mr. Hobby Lobby has an issue.

    It should also be noted that Mr. Hobby Lobby is even a mainstream Xian but a denominationist. Most of the xians who have been defending them really are unaware of what these people actually believe.

    Posted by: Homo Genius | Mar 25, 2014 12:11:39 PM

  5. It's really sickening. If you erect this seperate entity to protect yourself personally in certain ways, like an LLC so you don't lose your home if the business goes bankrupt, but then try and use your personal rights to protect that entity in other ways, you're asking to have your cake and eat it too.

    Posted by: Pablo | Mar 25, 2014 12:14:52 PM

  6. The USA is one giant mess

    Posted by: Messy | Mar 25, 2014 12:41:30 PM

  7. One's CHOSEN religion should not allow them to discriminate against another based on immutable traits.

    This nonsense about infringement on religious liberty is crap. Theirs was a choice, not ours. If you don't want to serve all people in the public sphere, then don't go into business in the public sphere.

    Posted by: D.R.H. | Mar 25, 2014 12:49:13 PM

  8. Also, if the cooperation is treated as an individual person, does the corporate person have the right to deny any aspect of anything to a human person? Wouldn't that denial be an infringement upon the rights of the human person. Or is this like Orwell's "Animal Farm"in which "All animals are equal, but some animals are more equal than others" ?

    Posted by: Bryan L | Mar 25, 2014 12:53:31 PM

  9. Wouldn't a corporation having a religion violate the religious rights of its employees? (Unless of course, you can just fire them based on conflicting religions...)

    This issue is important not just for LGBT people. Minority religions, "Nones", women all stand to lose.

    Posted by: Randy | Mar 25, 2014 1:53:24 PM

  10. This would mean a Jehovah's Witness employer could refuse to cover blood transfusions, a Muslim employer could refuse to cover heart valves from a pig, and a Christian Scientist could refuse to cover just about anything.

    Posted by: Merv | Mar 25, 2014 2:27:22 PM

  11. While I agree, I think there is a big oversight in this analysis:

    It's looking at the employer rather than the employee.

    That is, it is the employee's coverage to purchase. Thus, why does the employer have anything to say about it? The ACA does not mandate the employer to actually provide the healthcare (the Employer Shared Responsibility Payment simply states that if you don't, you have to pay into the IRS if one of your employees gets a credit from purchasing insurance.) Instead, it mandates insurance companies to provide a certain level of service because all people, including employees, are deserving of a minimum standard of care.

    The employer can choose to provide funds to purchase that care or not. That is simply the cost of doing business. The employee can then choose to use that coverage or not. Since the employer is not actually providing the healthcare, they don't have any claim over the employee's use of that care.

    The cost of doing business is that your employees are not your slaves. You don't get to tell them what to do when they're not on the clock. They have autonomy beyond the employer, including the right to healthcare that includes things the employer may not like.

    Posted by: Rrhain | Mar 25, 2014 4:04:17 PM

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