Ari Ezra Waldman | Discrimination | Law - Gay, LGBT | News | Religion | Ruth Bader Ginsburg | Samuel Alito

The Most Dangerous Line in the Supreme Court's Hobby Lobby Ruling

AlitoBY ARI EZRA WALDMAN

The most dangerous line in the Supreme Court’s recent decision in Burwell v. Hobby Lobby doesn’t come until page 46. It reads as follows:

The principal 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. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

That doesn’t sound too bad; indeed, it is probably one of the few statements in Justice Alito’s opinion that many of us would endorse.

Its danger, particularly to the LGBT community, rests in what is not said.

As we have discussed at length, Hobby Lobby allowed a family-run, for-profit arts and crafts company to deny its female employees access to certain contraception simply because that contraception violates the religious beliefs of the company owners.

GinsburgJustice Ruth Bader Ginsburg’s dissent cautioned that the Court was opening a door to allow anyone to use the pretext of religion to opt out of antidiscrimination or public accommodations laws. Justice Alito’s response was to deny the charge, arguing that where the government has a compelling interest in preventing discrimination, as it does in preventing discrimination on the basis of race, the Hobby Lobby exemption would not succeed.

But what happens when the government does not have that “compelling interest”?

Justice Alito chose a convenient example to respond to Justice Ginsburg’s concern. Most people agree that discrimination on the basis of race is not just bad, but absolutely anathematic to our constitutional tradition. But no one in the Court’s five-justice conservative majority has ever said that the state has a compelling interest to prevent discrimination on the basis of sexual orientation or gender identity. Even Justice Kennedy, the author of the Supreme Court’s three gay rights decisions, has carefully declined to declare that antigay discrimination merits heightened scrutiny or that the government has a compelling interest to permit gays to marry. We might believe that the same compelling interest that gives the state the power to prevent discrimination on the basis of race gives the state the same power to prevent discrimination on another status that has nothing to do with an individual’s ability to contribute to society—namely, sexual orientation or gender identity. But there are many judges out there who are not yet there. Congress isn’t even there yet.

CONTINUED, AFTER THE JUMP...

As lower courts begin to interpret the reach of Hobby Lobby and as the first case at the nexus of Hobby Lobby and the LGBT community comes forward, judges will look specifically to Justice Alito’s language at the end of his opinion cabining the decision’s reach. Judges will notice that Alito appeared to condition the inapplicability of Hobby Lobby on a “compelling interest” to prevent discrimination. A conservative judge will then review the long history of “compelling interest” jurisprudence and find controlling precedent binding him to apply it to race or national origin or religion, but find precious few precedents arguing that the Constitution permits the state to use the same strong response to discrimination on the basis of sexual orientation (let alone gender identity). This could give him license to expand the Hobby Lobby religious exemption to carve a hole in law – or in an executive order – aimed at preventing discrimination on the basis of sexual orientation or gender identity.

Needless to say, we not only have to stay tuned to the next developments, but remain vigilant against unjust expansion of the Hobby Lobby precedent.

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

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.

Feed This post's comment feed

Comments

  1. One of the interesting possibilities is that this SCOTUS majority decision and also the Mississippi law that took effect July 1 could result in religious bigots suing other religious bigots because of their conflicting bigoted beliefs. I would love to see that happen.

    Posted by: Bryan L | Jul 22, 2014 12:08:42 PM


  2. The most dangerous line is that where the majority (and I believe is echoed even the dissent, but I don't have either in front of me) claim no ability to determine the reasonableness of a belief.

    This is an institution that claims to be able to determine the reasonableness of just about everything on the planet. But a belief? No, no, no.

    As long as the court shuts its eyes to religious lunacy, religious supremacy will be the law of the land.

    This isn't just about us.

    Posted by: Randy | Jul 22, 2014 12:29:45 PM


  3. Sorry, but I've been saying this for years.
    Alito is Opus Dei; he is an undercover agent, a sneaky worm burrowing into decisions with disguised, pseudo rationality.
    When in fact he has sworn to promote Catholic values and ethos in public office, as part of his Opus Dei oath.

    He is undoubtedly the most dangerous man on the Supreme Court as far as our, and liberal, values and rights go.
    Scalia is loud and obnoxious; with Alito you will not even feel the dagger slip between your ribs.
    Just as he slipped in "compelling interest" in race as a legitimate public interest of government, he will be sure to promote the issue that the government has no "compelling interest" in a corporation discriminating against gays.....it's a matter of the private religious beliefs of the corporation.....which is a person too, 'you know'.

    The attack was always going to come from Alito, it always was, and it will in the future.

    Posted by: JackFknTwist | Jul 22, 2014 12:31:32 PM


  4. Actually, religious rights trump anti-discrimination laws all the time, such as Catholic priests being male only. This is a first amendment issue. Anti-discrimination laws don't apply to any first amendment issues, such as hiring actors for movies, hiring editors for newspapers, religious organization hiring of priests and rabbis, etc. So, Alito's phrasing is backwards. It should be, when can anti-discrimination laws be applied to first amendment activities...

    With the way this case was parsed, you'd think anti-discrimination laws are on top, but no, the first amendment is in the constitution, so it trumps laws enacted by Congress. All this backpedaling on the issue of "for" versus "not for" profit entities is the main source of confusion.

    Posted by: anon | Jul 22, 2014 2:58:54 PM


  5. Actually, religious rights trump anti-discrimination laws all the time, such as Catholic priests being male only. This is a first amendment issue. Anti-discrimination laws don't apply to any first amendment issues, such as hiring actors for movies, hiring editors for newspapers, religious organization hiring of priests and rabbis, etc. So, Alito's phrasing is backwards. It should be, when can anti-discrimination laws be applied to first amendment activities...

    With the way this case was parsed, you'd think anti-discrimination laws are on top, but no, the first amendment is in the constitution, so it trumps laws enacted by Congress. All this backpedaling on the issue of "for" versus "not for" profit entities is the main source of confusion.

    Posted by: anon | Jul 22, 2014 2:58:54 PM


  6. I really dislike Alito. When he dismissed gay couples & parents as a "social experiment" completely oblivious to the fact that we've always existed right in front of him, although his privilege allows him to pretend not to notice... I thought, "done with you, d-bag."

    I don't like to feel I'm anti-Catholic, but these clowns make it very, very difficult.

    Posted by: pete n sfo | Jul 22, 2014 4:51:24 PM


Post a comment







Trending


« «Georgia Attorney General Sam Olens Moves To Dismiss Challenge To Same-Sex Marriage« «