LGBT Legal Activists Brace for Religious Rulings from SCOTUS


SupremesJune is the final month of the U.S. Supreme Court’s current session and, while anticipation is not nearly so great this year for the LGBT community as it was last year, there is some concern in the air.

Last year, the wait was about marriage: whether the Supreme Court would declare the Defense of Marriage Act and California’s ban on same-sex couples marrying to be unconstitutional. It declared DOMA unconstitutional and, on a legal technicality, it allowed a lower court decision striking California’s Proposition 8 to stand.

This year, anxiety surrounds two consolidated cases in which employers are seeking the right to discriminate against employees in the provision of health benefits based on the company owner’s personal religious beliefs. It is the type of conflict –religious beliefs versus non-discrimination laws– that has arisen time and again in recent years by employers seeking to discriminate against LGBT people.

HobbylobbySebelius v. Hobby Lobby Stores and Conestoga Wood v. HHS are lawsuits brought by the owners of for-profit commercial enterprises –a furniture maker, an arts and craft store, and a bookstore (the latter selling Christian-oriented books). The owners of the company object to a requirement by the Affordable Care Act that employers’ health plans include coverage for contraception. They say they’re not trying to stop the use of contraception; they just don’t want to be involved in funding it.

The Family Research Council submitted a brief in support of the Hobby Lobby employers, arguing that “commercial activity does not preclude or excuse religious observance and often can be a means of exercising religion.”

But an article on reported the Hobby Lobby and  Conestoga owners are involved in political efforts to stop the use of contraception, as well as marriage for same-sex couples, through its donations to the National Christian Charitable Foundation, which funnels millions of dollars into organizations such as the Alliance Defending Freedom which has defended many state bans on same-sex marriage.

LGBT legal activists seek two major concerns with a ruling in favor of the employers in these cases. One is that it could open the door for employers to seek exemptions from providing coverage for other health benefits, such as coverage for the same-sex spouses or partners of employees, reproductive services for lesbian couples, testing and treatment for men at risk of HIV infection, transgender treatment for people with gender dysphoria. And the other is that employers and individuals might seek exemptions to other laws, such as laws prohibiting discrimination based on sexual orientation and gender identity.

Johnson“Given these implications, the Hobby Lobby case is indeed another major moment for the LGBT community,” wrote National Center for Lesbian Rights Policy Counsel Ashland Johnson (pictured, right), in an article for NCLR’s website. “The Supreme Court’s resolution of the case will directly affect our reproductive rights and other health care needs. Equally concerning, it could result in devastating exceptions to protections for LGBT people at the state and local level, jeopardizing literally decades of advocacy and progress.”

Following oral argument in March, Lambda Legal’s director of Law and Public Policy, Jenny Pizer, expressed concern that the court may give certain for-profit companies –those closely held by families or small groups of people (also known as S-corporations)— the ability to claim the same sort of religious exemption to ACA that is currently afforded to religious institutions.

“If they say any for-profit can claim religious [exemptions], obviously, that’s very bad,” said Pizer in March. “If they say only S-corporations can have a religious exemption, that’s less bad, but it’s still bad. There are an awful lot of family-owned businesses.”

Adding to that worry: On May 5, the Supreme Court surprised some when it ruled in favor of allowing a town board in Greece, New York, open its meetings with a prayer that is specific to a particular religion, usually Christianity.

Kennedy“To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town's current practice of neither editing or approving prayers in advance nor criticizing their content after the fact,” wrote Justice Anthony Kennedy for a 5 to 4 majority in Town of Greece v.  Galloway.

Other decisions LGBT legal activists will likely be watching for in the next few weeks include:

National Labor Relations Board v. Noel Canning. The case involves the president’s right to make appointments during Congressional recess – a tool President Obama has used to get a number of openly gay people into positions. He used it to get lesbian legal activist Chai Feldblum cleared onto the Equal Employment Opportunity Commission and to install gay nominee Richard Sorian as assistant secretary for public affairs at the Department of Health and Human Services.

McCullen v. Coakley. The Gay & Lesbian Advocates & Defenders, the National Gay and Lesbian Task Force, and the National Center for Lesbian Rights both signed onto a friend-of-the-court brief in support of a Massachusetts that attempts to protect the safety of women seeking abortions by creating a 35-foot setback for any protest outside such facilities.

Riley v. California. No LGBT group filed a brief in this case, but the gay friendly American Library Association did, arguing that police should not have a right to search a person’s smartphone contents without a warrant, incident to an arrest. Noting that smartphone users store sensitive personal data about themselves and their interests on their smartphones, the ALA brief said, “Smartphones are personal computers in every sense of the word: if every arrest of a person with a smartphone … allows police officers to rummage painstakingly and intrusively through the contents of personal libraries, the loss of constitutionally protected privacy will be great indeed.”

© 2014 Keen News Service. All rights reserved.


  1. says

    I still don’t understand why an employer’s religion should have any impact on an employee. And would it be the CEO, the President of the company, the VP, a supervisor. . .which person’s religion holds sway? Or are we saying that the corporation itself has a religion? And what other things can they opt out of or opt IN? Circumcisions? I really hope Kennedy is on the right side of this one.

  2. StillmarriedinCA says

    I am afraid I find it impossible to be optimistic on this one. The fact remains that this court leans to the right by a 5-4 majority that favors the rights of corporations over people and tend to rule more like we have a theocracy rather than a democracy. I am sure they will find in favor of Hobby Lobby. That will be a terrible mistake but we have to be prepared for it.

  3. Malcolm says

    it is clear that SCOTUS is going to rule in favor of Hobby Lobby and create broader exemptions to laws of general applicability in the interest of expansive religious liberty.

  4. Randy says

    The rhetoric of the Christian right, and their continuing campaign to elevate any “fervently held” nonsense as a legitimate exemption to nearly any law, makes it clear that LGBT freedom and equality is not compatible with religion.

    But it’s not just LGBT people who suffer. Minority religions suffer (I know, crocodile tears from me, but it’s still true), non-believers suffer, people removed from the church suffer, and children suffer. How many more kids need to die because their parents “sincerely believe” some sky man will save them?

  5. anon says

    Many employer mandates laws only apply if the employer offers health care benefits. If they don’t like the law they can always drop coverage for their employees.

  6. ian says

    if they rule in favor of hobby lobby i think hobby lobby will end up regretting it. not because of a boycott, which’ll probably happen, not because of external pressure, but because they’ll end up loosing a lot of their best and most productive workers. they won’t be able to retain talent, not just female employees they will discriminate against in health care but the gay employees this is transparently targeted at as well. then there are the straight employees who just don’t want to work in an environment like that who might seek employment elsewhere. and lastly hobby lobby will create a hostile work environment for remaining employees which will reduce productivity simply because hobby lobby has engendered bad attitudes. be careful what you ask for, you might get it.

  7. Pandion says

    This is idiotic. If everyone starts getting exemptions from the law because of their “sincerely held beliefs”, then what happens to the rule of law? What happens to democracy?
    It’s going to be descent into either theocracy or anarchy.

  8. emjayay says

    Re: “the ability to claim the same sort of religious exemption to ACA that is currently afforded to religious institutions.” I understand folding on that one for political popularity reasons and getting past it so it won’t stick to the ACA in general etc., but it was wrong also. And the Hobby Lobby/corporations thing was one step even more wrong.

    Fine comment Ian, but could you find the Shift key, please? We all can’t be e e cummings, and this isn’t poetry.

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