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…
Hobby Lobby's objection to Obamacare's requirement that employers provide contraception health care coverage to their female employees was not the only objection out there. Hobby Lobby is a unique case: a family-run for-profit business that objected to four particular types of contraception, the provision of which, the family felt, would violate the Bible. The Court said that the law requiring Hobby Lobby to provide contraceptive coverage was too harsh and it pointed to the work around Obamacare implemented for religious nonprofits as evidence of a narrower, softer approach.
Such nonprofits must fill out the document that enables their insurers or third-party administrators to pay for the contraception directly. This absolves the employer from paying for it entirely. Insurers, then, get reimbursed by the government.
That work around was not enough for Wheaton College, an evangelical institution. The college argued that because filling out the form would provide a pathway for the contraception it found objectionable to still get to employees, even filing the form would violate their religious beliefs. Wheaton, therefore, refused to fill out the form and challenged the requirement and the work around.
After Hobby Lobby, one of the orders issued by the Court was an emergency injunction stating that Wheaton College did not have to fill out the form to opt out of the contraceptive coverage, thereby preventing their employees from getting the coverage, and could simply inform the government of its plans while its lawsuit was pending. Injunctions only get issued when, among other things, there is a likelihood of success on the merits, so the Court issuing the injunction suggests that, given Hobby Lobby, it think that Wheaton is likely to succeed in its lawsuit.
Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might … retreats from that position.
In Hobby Lobby, the Court used the existence of the workaround as proof that Obamacare's contraception requirement was too harsh and broad and that there were ways around the problem. To grant an injunction in Wheaton's favor on that very point is to implicitly recognize that Wheaton's constitutional objection to the workaround has substantive merit. So, basically, the Court was saying that the supposed viable alternative for Hobby Lobby is also likely unconstitutional.
Justice Ginsburg, in her Hobby Lobby dissent, warned that the Court was doing a lot more than its words seemed to suggest. This emergency injunction appears to prove her right.
Granted, the lower court hearing the Wheaton case could ultimately decide that the challenge fails. So, too, could the Supreme Court, if it every returned. But to say one thing one day and walk back from it the next is misleading, untrustworthy, and dangerous. Worse yet, it ruins the respect we have for the institution of the Supreme Court. And, perhaps most importantly, it broadens Hobby Lobby, making it more likely that it will get broader still and negatively impact the freedoms of the LGBT community.
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.