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.
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…