The end of a Supreme Court term usually brings a flurry of action on big cases. Last year, we got Justice Kennedy's decision in United States v. Windsor that struck down part of the Defense of Marriage Act and ushered in an unbroken marriage equality winning streak in the courts. This Supreme Court docket did not include any similar LGBT law cases. Nor did it end as heroically. This year, the Court's conservative majority allowed for profit companies to discriminate against women in the provision of health care in Burwell v. Hobby Lobby.
But sometimes, it's the less heralded maneuvers that make all the difference: a silent nemesis that creeps up behind you can do a lot more damage than a screaming Visigoth charging head on.
That's what happened at the end of the Court's term last month. Justice Alito's Hobby Lobby majority opinion explicitly limited the decision to closely-held (family-run) corporations and explicitly limited it to the particular forms of contraception that were at issue in the case. The justices in the majority went out of their way to say that the decision leaves antidiscrimination laws intact, that it does not apply to publicly-traded corporations, that the decision should be confined to its facts. What's more, the Court also stated that one of the main reasons the government could not compel for-profit companies to provide objectionable health care was because there already was a viable work around aimed at religious nonprofits. Those organizations fill out a form attesting to their religious objection and the contraception would be provided directly from the health care company and not through the employer.
Not 24 hours later, the Court proved to us that all those words meant nothing. After issuing a decision, the Court also ordered lower courts to rehear related cases that could be changed by the decision. If Justice Alito and the majority could be taken at their word, the only cases that would need rehearing were those cases within the explicit narrow confines of Hobby Lobby. But the order went further. To the great consternation of Justices Ginsburg, Sotomayor, and Kagan (notably, the three female justices on the Court), the majority ordered lower courts to rehear all pending cases involved religious exemptions to the contraception requirement, not just cases involving companies like Hobby Lobby and not just cases involving the particular forms of contraception involved in the case. And, as if that were not enough, the Court enjoined the very workaround meant for nonprofits that it appeared to endorse in Hobby Lobby as a viable alternative.
Left-leaning bloggers and writers -- not to mention the three female justices on the Court -- were apoplectic. The Court seems to have gone back on its word. Perhaps worse, the Court has broadened an already dangerous decision.
I summarize what the Court did, why Justice Sotomayor seemed so irate in her dissent, and why this matters for the LGBT community, AFTER THE JUMP...