Hobby Lobby’s Supreme Court Win Sets Up Battle Over Anti-Gay Discrimination

While the company Hobby Lobby triumphed at the U.S. Supreme Court in challenging Obamacare’s contraceptive mandate on Monday, the Court does not seem to have flung open the floodgates for anti-LGBT discrimination as some had feared it might.

Instead, legal observers noted, the ultimate resolution has been left for another day on whether a private business could lawfully discriminate against LGBT people on religious grounds. But Justice Anthony Kennedy offered gay rights advocates a glimmer of hope on that front as well.

The Court ruled 5-4 that the government could not mandate “closely held” private companies with sincerely held religious beliefs, like Hobby Lobby, to cover certain kinds of birth control for their employees. That decision hinged in part on the religious freedom rights of a private corporation. Prior to the ruling, LGBT rights advocates had worried that a broad decision could open the doors for more anti-gay discrimination bills like the Arizona bill that stirred national debate earlier this year.

Based on initial readings of the Hobby Lobby decision, LGBT advocates seemed to have dodged a bullet. The Court’s ruling, written by conservative Justice Samuel Alito, is explicitly narrow in effect. But some advocates worry that those pushing anti-LGBT bills will see an opening to introduce new bills and file new lawsuits to legitimize discrimination. Whether they’d win, though, is much less clear.

“It is critically important that the decision includes explicit limiting language distinguishing this situation from claims for broad religious exemptions from nondiscrimination protections,” Jenny Pizer, senior counsel at Lambda Legal, a gay rights organization, told TPM. “Some may mistake this narrow ruling as a wide open door for religious liberty exemptions from other statutes that protect employees and the public. Today’s opinion says doing so would be incorrect.”

They pointed to language in Alito’s decision that aims to limit its immediate scope to the contraceptive mandate and the specific parties involved.

“This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs,” Alito asserted. “Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.”

Though he did not mention anti-LGBT discrimination explicitly, Alito later addressed concerns that the Court’s ruling could lead to religious freedom arguments to legitimize discrimination based on race, for example. “Our decision today provides no such shield,” he wrote.

“It strongly suggests it would reject broad religious claims to, for example, discriminate against gay employees,” Tom Goldstein of SCOTUSblog wrote.

But others weren’t so sure. The Alito ruling did not provide explicit cover for private businesses to discriminate against LGBT people, but it didn’t rule it out either, Douglas NeJaime, a law professor at the University of California-Irvine, told TPM. The conservative groups that pushed bills like the one passed by the Arizona legislature this year might be emboldened by the decision to press their case anew in court, he said. NeJaime also pointed to a New Mexico photography company involved in a lawsuit because it refused to perform work for a same-sex couple.

Justice Ruth Bader Ginsburg raised similar concerns about the Alito ruling’s implications in her dissent. “The Court, I fear, has ventured into a minefield,” she wrote.

“I think the reasonable interpretation before today’s decision was for-profit businesses don’t have these constitutional or statutory rights,” NeJaime said. “I think this decision suggests that they might.”

But the key to that final question might be Kennedy’s concurring opinion, Fred Gedicks, a law professor at Brigham Young University, told TPM. Kennedy sided with Alito’s judgment, but wrote a short four-page opinion of his own, in which he indicated he was joining the Alito decision because, in the Hobby Lobby case, the government has a means of providing contraceptive coverage to those who are not covered by their employers.

(Under Obamacare, employees at religious non-profits who object to providing contraception receive coverage, but it is not paid for by their employer. Kennedy and Alito suggested the government do the same for employees at companies like Hobby Lobby).

“He is quite clear that exemptions are not permissible when they would impose burdens on employees and other third parties,” Gedicks said. From the Kennedy opinion:

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.

“If we’re talking about whether a claimant could get a religious exemption from anti-discrimination law affecting LGBT people, I think you could see Justice Kennedy going with the four dissenting justices,” NeJaime said.