BY ARI EZRA WALDMAN
In the words of Justice Ruth Bader Ginsburg, dissenting today in Burwell v. Hobby Lobby:
In the Court’s view, [the Religious Freedom Restoration Act] demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
"Havoc" is one mild, understated way to put it. I would add "dangerous," "unprecedented," and "violent."
When last we heard about Obamacare, the number of enrollees had exceeded certain Administration expectations. But if you recall, these enrollments were only allowed to happen after the Supreme Court concluded that the central piece of the law -- the individual mandate that requires people to have insurance -- is constitutional.
Today, Obamacare is back in legal news. In a 5-4 decision in Hobby Lobby, the Court held that family-owned corporations can opt out of generally applicable laws for religious reasons. You can read the full decision here. I previewed the legal issues back in March because this case has dangerous implications for the future of LGBT equality.
This case is a so-called religious freedom challenge to a federal law. The Affordable Care Act requires that health care plans provide their customers with certain contraceptives and contraceptive services free of charge. Hobby Lobby, a closely-held (that is a fancy legal term for "family-run") chain of retail arts and crafts stores run by a deeply religious family, took issue with providing its employees with contraceptives that it believed violated the owners' religious beliefs. The company challenged the requirement, arguing that corporations can have religious rights, should be able to sue to protect those rights, and that Obamacare violated its freedom of religion.
Many of us are concerned about our health care and the health care of others. This decision impacts directly all of us who work for companies that provide health insurance: granted, today's decision only applied to private, closely-held companies; but there is little in the opinion to prevent expansion down the road.
However, more to the point, Hobby Lobby sets a dangerous precedent in the gay rights universe. Gay equality laws -- from marriage equality laws in New York to the Employment Non-Discrimination Act that passed the U.S. Senate -- have religious exemptions. States that gained marriage equality by judicial decision still have vocal opponents whose arguments (perhaps pretextual) are based on religious freedom. They say they should not be forced to bake a cake for a gay wedding, or rent out their catering halls for gays, or provide any services to gay couples because they oppose gay marriage. If Hobby Lobby, an arts and crafts company that has nothing whatsoever to do with religion, can exempt itself from a federal law aimed at providing equal access to all, then perhaps a baker or a florist or a limousine driver can do the same to us.
Religious exemptions and religious freedom arguments can grow to a point where they endanger equality. Our community cannot simply be satisfied with Windsor, the post-Windsor marriage equality winning streak, and the prospect of an impending second shot at the Supreme Court. Hobby Lobby could undo much of it.
AFTER THE JUMP, I discuss the Hobby Lobby decision, its dangers, and its limitations.