Discrimination | Gay Rights | Law - Gay, LGBT | News | Supreme Court | Tobias Wolff

Tobias Wolff: ‘Hobby Lobby Decision Supports The Enforceability Of Anti-Discrimination Laws’

Wolff

As pointed out yesterday by Rachel Maddow, in the aftermath of the Supreme Court’s ruling in Hobby Lobby, religious groups have already begun seeking “religious freedom” exemptions from an executive order that bans federal contractors from discriminating against LGBT people. While alarm bells have begun to ring for many gay rights advocates, University of Pennsylvania law professor and Obama legal adviser Tobias Wolff has issued a statement that may be intended to allay fears about any potential detrimental impact that Hobby Lobby could have on LGBT rights. Wolff argues that Hobby Lobby does not open the floodgates of state sanctioned anti-gay discrimination on the grounds of first amendment religious exceptionalism, but rather is more limited in scope and in fact upholds anti-discrimination protections.

Wolff writes,

It is important to understand that Hobby Lobby in fact rejects the argument that religious exercise can be an excuse for invidious discrimination. The following is the key passage of the decision, which the Court inserted specifically to respond to the suggestion that its ruling could authorize discrimination in the workplace:

"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. See post, at 32-33. 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.” […] 

- In this passage from Hobby Lobby, the Court…makes clear that laws and policies that prohibit discrimination in the workplace are "precisely tailored to achieve that critical goal". In other words, it is the act of discriminating itself -- which deprives the individual worker of "an equal opportunity to participate in the workforce" -- that inflicts the harm that the government has a compelling interest to eradicate. This passage strongly repudiates the argument that opponents sometimes make that there is no compelling interest in enforcing anti-discrimination laws if a person could find another job or patronize another business. Every act of private discrimination works a serious harm that the government has a compelling interest in eradicating.

In the days ahead, it is important that advocates and leaders strongly push out the message that the Hobby Lobby decision strongly supports the enforceability of anti-discrimination laws, even in the face of religious exemption arguments. Hobby Lobby represents a vindication of the principle that anti-discrimination protections should trump religious objections in the workplace.

You can read Wolff’s full statement, AFTER THE JUMP…

Friends and Colleagues --

In the wake of the Hobby Lobby decision, opponents of LGBT equality are trying to reverse the progress we have made on workplace protections. As Chris Geidner reports, a group of advocates including Rick Warren have published a letter seeking to pressure the White House to insert a broad and unprecedented religious exemption in the forthcoming Executive Order on federal contractors, and they point to Hobby Lobby as one principal justification.

It is important to understand that Hobby Lobby in fact rejects the argument that religious exercise can be an excuse for invidious discrimination. The following is the key passage of the decision, which the Court inserted specifically to respond to the suggestion that its ruling could authorize discrimination in the workplace:

"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. See post, at 32-33. 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."

Allow me to break down the significance of this passage -- what it says, and what it means in a larger context -- so that we can respond appropriately to these attempts to use Hobby Lobby to justify discrimination.

- The Supreme Court says unequivocally in this passage that private workplace discrimination is a harm so severe that government has a "compelling interest" in eradicating that discrimination.

- The Court uses the example of race discrimination to make this point, but it does not limit itself to race discrimination. 

- Discrimination based upon other suspect characteristics -- those that provoked either "heightened scrutiny" or "strict scrutiny" when government uses them to discriminate -- are controlled by the same principle. The Supreme Court has already issued a holding to that effect regarding private acts of sex discrimination in the context of the First Amendment, in a case called Roberts v. U.S. Jaycees. Thus, the government "has a compelling interest in providing an equal opportunity to participate in the workforce without regard to" sex and gender, as well.

- Antigay discrimination by government is a suspect form of discrimination that provokes heightened scrutiny. That proposition has been strongly affirmed by the President and the Attorney General in their refusal to enforce DOMA and by the Second Circuit Court of Appeals in their decision in Windsor, the Ninth Circuit Court of Appeals in the SmithKline Beecham case, the California Supreme Court, the Connecticut Supreme Court and the New Mexico Supreme Court in their marriage equality rulings, and other courts as well. Therefore, government has a compelling interest in eradicating private antigay discrimination from the workplace. 

- Antitrans discrimination is discrimination based upon sex and gender and hence subject to heightened scrutiny. That proposition has been strongly affirmed by the Obama Administration, for example in the Macy v. Holder ruling and in the recent clarification issued by the Labor Department, and by the Eleventh Circuit Court of Appeals in Glenn v. Brumby and other courts around the country. Therefore, government has a compelling interest in eradicating private antitrans discrimination from the workplace.

- In this passage from Hobby Lobby, the Court also makes clear that laws and policies that prohibit discrimination in the workplace are "precisely tailored to achieve that critical goal". In other words, it is the act of discriminating itself -- which deprives the individual worker of "an equal opportunity to participate in the workforce" -- that inflicts the harm that the government has a compelling interest to eradicate. This passage strongly repudiates the argument that opponents sometimes make that there is no compelling interest in enforcing anti-discrimination laws if a person could find another job or patronize another business. Every act of private discrimination works a serious harm that the government has a compelling interest in eradicating.

In the days ahead, it is important that advocates and leaders strongly push out the message that the Hobby Lobby decision strongly supports the enforceability of anti-discrimination laws, even in the face of religious exemption arguments. Hobby Lobby represents a vindication of the principle that anti-discrimination protections should trump religious objections in the workplace.

 

Tobias Barrington Wolff

Professor of Law

University of Pennsylvania Law School

http://www.law.upenn.edu/cf/faculty/twolff/

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Comments

  1. Tobias is a very bright and talent legal mind. And certainly what he says is ONE WAY that the Hobby Lobby case can be interpreted. But it is also true that the Supreme Court (and lower courts) could also say that the comments in the Hobby Lobby case about discrimination laws apply ONLY to "race discrimination" -- and not to discrimination based on sexual orientation (or gender). I'm not saying that this Supreme Court would do that, but it's certainly possible they might do that. It won't take long (days?) before some anti-gay right-wing religious business claims that it doesn't have to provide service to gay people based on the Hobby Lobby case -- and then the courts will soon be deciding this issue.

    Posted by: MiddleoftheRoader | Jul 3, 2014 12:23:22 PM


  2. Really, Rick Warren? Congrats on learning nothing from DRIVING YOUR OWN SON TO SUICIDE.

    Posted by: Little Kiwi | Jul 3, 2014 12:25:28 PM


  3. OMG, I cannot believe that this person stated that we are protected. There ARE NO antidiscrimination laws against gay people. This only covers those protected classes (race, religion, national origin, gender); it STILL does not protect LGBT individuals from religious liberty claims. We are NOT protected; even under the express Supreme Court statements that this cannot be used to allow for discrimination based on religious liberty (as there are no protections under the law for LGBT persons.)

    Posted by: derwood | Jul 3, 2014 12:27:58 PM


  4. Kiwi, did you ever consider that Rick Warren did that on purpose? It's much more convenient to have a dead son one can pretend is straight than it is to have a living gay son that thrives despite your religion, bigotry and political intervention.

    Posted by: Tyler | Jul 3, 2014 12:29:00 PM


  5. Tyler - make no mistake - he'd rather his son be dead and buried in a closet than alive and Out. Warren - who travels overseas to promote anti-gay bigotry, makes a living being anti-gay. Having a gay son would mean the end of his empire - and he knows it. And his son knew it.
    He's probably the type of person who would say "my son would have told me if he was gay. he would have known he could talk to me about anything" - which is patently false. I grew up with parents that not only never uttered a single ant-gay sentiment, ever, but were rather vocally pro-gay. And I was *still* terrified of Coming Out as a teen - because that's what anti-gay culture does to us.

    Make no mistake - Warren's son blew his brains out because he couldn't take living with his lie any longer. And Warren doesn't even care.

    Posted by: Little Kiwi | Jul 3, 2014 12:35:17 PM


  6. I agree with @Middleoftheroader. I seriously doubt that the protections for racial discrimination will be interpreted to extend to LGBT rights. I do, however, take heart in the New Mexico case, in which anti-discrimination laws upheld by the state's Supreme Court were upheld by the US Supreme Court when they rejected the petition by the photographers cited for refusing to film a wedding due to religious objections. I do believe that religious extremists will chip away at our protections using the Hobby Lobby ruling as their basis, at least until the US Supreme Court emphatically rules we are protected constitutionally against discrimination just like all the other protected groups.

    Posted by: Keith | Jul 3, 2014 12:36:10 PM


  7. This ruling will be used to justify terrible discrimination against GLBT people and anyone else the religious right doesn't like, no matter what the legal analysts say and no matter what kind of "we didn't really mean that" statements the court threw in as an afterthought.

    Posted by: The Milkman | Jul 3, 2014 12:38:20 PM


  8. just wait until the conservative supremes try to decide which beliefs are deeply held, and which ones are only shallowly held.

    who decides what constitutes a religion? can business owners create new religions with deeply held beliefs that fit their own prejudices? and if atheist business owners have deeply held beliefs against any religion, are they protected as well?

    watching the court face the backlash of this political ruling might play on for years, very sad for our country.

    Posted by: northalabma | Jul 3, 2014 1:03:01 PM


  9. Not sure if AIDS medication is covered by insurance companies. Employers can also cite religious reasons not to cover those diseases because they object to "homosexual lifestyle" if the employee happens to be gay. If that is not discrimination. What is that?

    Posted by: simon | Jul 3, 2014 1:09:52 PM


  10. Ask yourself, when has religious thought every advocating anything like a balanced approach to gay people in society?

    It's rhetorical... because they haven't.

    It is for this reason that Wolff, and many others are exactly right. The Supremes can decide the ruling is meant to be seen only one way... but a lot of laws will be passed & challenged, and taken to the SCOTUS again before they can clean up this major f-up.

    Posted by: pete n sfo | Jul 3, 2014 2:17:19 PM


  11. There are two big reasons why Wolff's analysis doesn't hold water:

    1) Such protections for race and sex don't apply to sexual orientation. Even if Wolff's plain analysis were accurate, there is no reason why it should apply to gay people since, outside of a single court decision which is being challenged, sexual orientation is not given protected status.

    2) The Supreme Court has a history, especially under Roberts, of doing two-steps with regard to rolling back protections. That is, they will take a case that they claim can only be utilized in a certain way. Then, a second case will come along which, by referencing their earlier case, they will use to finish the job. "Yeah, we said it was only in this one particular way but upon further reflection, we realize that it actually applies across the board."

    For example, Wolff writes that there is a "compelling interest in providing an equal opportunity to participate in the workforce without regard to race." Well, there is also a "compelling interest in providing equal protection for religious belief with regard to employees" not being beholden to their employers' beliefs. And yet, the Court ruled that no, your access to healthcare that you paid for with your own money is to be held hostage by your employer's religion, regardless of your own.

    What's to stop them from making the exact same argument? Why is healthcare different from employment? I dare say it's even more important: Not everybody needs a job but everybody needs healthcare. If the offense of the employer is so great that it cannot be tolerated in the case of one, why does it get to be ignored in the other case?

    Posted by: Rrhain | Jul 3, 2014 2:42:09 PM


  12. He is wrong and his analysis is very misleading. Justic Alito was responding to the dissent, which raised the fear that the majority ruling could threaten a broad array of anti-discrimination protections, specifically including those based on sex and sexual orientation. In response, Justice Alito basically said "That won't necessarily happen. For race, there's a compelling state interest and so no religious exemption would be allowed."

    In other words, Alito pointedly ignored the dissent's discussion of sex and sexual orientation and only gave an assurance about race. That is a terrible message to send.

    Here's an analogy: If a husband says to his wife "I think you are cheating on me with the mailman, the paper boy, and the plumber" and the wife's response is "I promise you that I am not having an affair with the paper boy" -- that isn't a good sign. Her silence as to the mailman and the plumber gives rise to an inference that she has been having an affair with them. That is essentially what Alito and the Court majority did by discussing only race and not sex or sexual orientation.

    Christian groups are going to argue that there is a compelling interest in prohibiting race discrimination but that the state's interest is not so great when it comes to other forms of discrimination.

    We need to stop listening to guys like Wolff and start working on repealing or reforming RFRA.

    Posted by: Pete | Jul 3, 2014 2:44:32 PM


  13. The Supreme Court earlier this year turned away an appeal on public accommodation anti-discrimination laws, so the HL ruling does not change that. Also, the HL ruling does not apply to state and local laws. People hoping to turn this into a campaign issue are doing a lot of harm.

    Posted by: anon | Jul 3, 2014 4:36:04 PM


  14. In Hobby Lobby/Conestoga, The Supreme Court said nothing about anti-LGBT discrimination, and the Congress has made clear by repeatedly rejecting ENDA (and not even considering adding sexual orientation to the Civil Rights Act) that there is zero compelling interest in protecting LGBT people, quite unlike race, which is written into the law, and is the reason for the 14th Amendment.

    Regarding heightened scrutiny, the Supreme Court has not decided whether heightened scrutiny applies to LGBT people. The Windsor case involved discrimination of an "unusual character", and that's what triggered it. It's not at all unusual for religious bigots to discriminate against us. It's what they do!

    Repeal RFRA now.

    http://ffrf.org/news/news-releases/item/20870-ffrf-s-full-page-ad-in-new-york-times-to-protest-hobby-lobby-ruling

    Posted by: Randy | Jul 3, 2014 6:57:08 PM


  15. So how's the BIG FIBBER, Rachael Maddow (http://www.towleroad.com/2014/07/rachel-maddow-on-how-the-scotus-hobby-lobby-ruling-is-already-being-used-to-justify-anti-gay-discrim.html#more) or this guy?...

    Posted by: SFRowGuy | Jul 3, 2014 7:09:48 PM


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