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Supreme Court Could Soon Open The Floodgates For More Anti-Gay Laws

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AP Photo / Cheryl Evans


Hobby Lobby President Steve Green and his mother Barbara Green outside the federal courthouse in Oklahoma City in July

"There's an excellent chance that the manner in which the Court disposes of Hobby Lobby will say something significant on the constitutionality of these state statutes," Fred Gedicks, a law professor at Brigham Young University, told TPM. "It could be a powerful precedent."

The Court will hear oral arguments in Hobby Lobby next month, with a decision to come in the following months.

Supporters of these bills would "gain a better argument" if the Court ruled in their favor, added Doug NeJaime, a law professor at University of California-Irvine. "If they win on that question, it's just a leveling down to states to say, 'These are the same types of rights we're seeking under state free exercise laws.'"

So if they get a favorable decision in the Hobby Lobby case, the proponents of legislation like Arizona's could use that momentum to continue pushing that kind of statute across the country, advocates warn. While there has been a raft of new anti-gay discrimination laws introduced this year, the gay rights community says it's only the beginning.

"Proponents are taking a timeout. They're rethinking how to tweak the bills," Jenny Pizer, senior counsel at Lambda Legal, a gay rights advocacy group, said. "They're likely to try again. They're very passionately determined, so I do think we're likely to see many more chapters of this story."


Demonstrators opposing Idaho's "religious freedom" bill in the statehouse rotunda in Boise on Feb 17.

In the Hobby Lobby case, the primary law in question is the federal Religious Freedom Restoration Act, which requires the government to have some compelling interest to interfere with the free exercise of religion. The case hinges on whether that law applies to for-profit corporations.

But the legal issues in play trace back to a fundamental First Amendment question: whether one person's exercise of professed religious beliefs can infringe on the constitutional rights of another. Those challenging the Obamacare contraception mandate argue that businesses and individuals should have broad discretion to exercise their religion. Their opponents counter that there must be some threshold in which the harm inflicted on another supersedes that religious conviction.

That would also be the central question in any theoretical litigation challenging one of the "religious freedom" bills being proposed by conservatives nationwide, if one became law, and that's why the manner in which the court resolves that issue is likely to have far-reaching effects beyond the health law's contraception rule.

"The most important issue in these cases is whether they require the vindication of the religious objection at all costs," Gedicks said. "The Supreme Court decisions are pretty clear that an accommodation statute that has an unyielding insistence on accommodation of religion, despite the burden that it imposes on others, is not constitutional. It violates the Establishment Clause."

"The line that Hobby Lobby is pushing," he said, "is that no one gets to tell them what is a substantial burden on their religion. That's entirely subjective. That's entirely within their discretion. Any court cannot tell them that something is not a substantial burden."


A group opposing same sex marriage demonstrates Feb. 25 in front of federal court in Detroit, where Michigan's same-sex marriage ban is being litigated.

Constitutional precedent does allow for some religious exemptions from government laws for certain religious entities. For example, churches can "discriminate" against people who don't belong to their religion when hiring a pastor.

But the question presented in Hobby Lobby -- and which would be further explored in a case challenging one of these "religious freedom" bills -- is whether those protections should be extended to for-profit businesses and any individual who claims them.

"This is really a much bigger exception to what would normally be anti-discrimination law, to say that for-profit businesses and any individual has an exemption that they otherwise wouldn't have," NeJaime said. "You're basically saying the entire world can potentially claim a religious exemption."

As for more explicit laws that offer protection for discrimination against gay couples, as had been proposed in Kansas, they would likely face challenges based on the Court's ruling in Romer v. Evans, a 1996 decision which prevented Colorado from denying LGBT citizens the protections of the state's anti-discrimination law.

"It's unprecedented to just carve out of all anti-discrimination protections one class of people," NeJaime said. "Something like that would probably be suspect given constitutional equal protection doctrine at the federal level."

But bills like Arizona's, which don't name homosexuality outright but seemed clearly intended to allow anti-gay discrimination and would likely have that effect, leave more legal wriggle room, legal experts told TPM -- which is why the Hobby Lobby case will set an important precedent for the "religious freedom" arguments that would be applied.

Some precedents do already exist. For instance, the rationale behind the court's decision last year to strike down the federal Defense of Marriage Act in United States v. Windsor could spell trouble for those more ambiguous statutes, according to Gedicks.

"The majority opinion in Windsor seemed pretty open to the idea that the protection of traditional marriage could be interpreted as a cloak or a disguise for animus," he explained. "They could certainly treat these state cases in the same way that they treated DOMA and simply jump to the conclusion that it's merely motivated by animus and a desire to harm same-sex couples."


Arizona Gov. Jan Brewer (R) during her State of the State address in January

Whatever precedent is set by the Hobby Lobby decision, expect a surge in litigation by gay right advocates if states pass any of the pending anti-gay discrimination bill. For gay rights advocates, the ideal test case would likely involve a same-sex couple being denied a service under one of these laws and facing some kind of burden in remedying their situation, Gedicks said. To give one simplistic example: A same-sex couple living in a rural town wants to get married but the only local wedding photographer (or baker, etc.) refuses to serve them, forcing them to either re-locate their wedding or spend additional money to hire an out-of-town business.

Ira Lupu and Robert Tuttle, law professors at George Washington University, have argued that a test could be established by which a court can determine if the exercise of religion places a burden on another and is therefore unconstitutional. And the Hobby Lobby case, they argue, gives the Court an opportunity to establish that test.

"They take that as a premise and say, 'Well then anybody can claim an exemption or can force the government to come forward with a compelling interest just basically by raising their hand, no matter how implausible the claim seems,'" Gedicks said. "They suggest that the escape hatch is to provide a similar kind of standard on the back-end, in terms of burdens to third parties."

"If there is even a modest burden to third parties, then that is the way to cabin this constitutional Pac-Man that threatens to allow religious people to become a complete law unto themselves."

Lead Photo: Opponents of Arizona's anti-gay discrimination bill urged Gov. Brewer to veto it during a protest rally at the state Capitol on Feb. 21

About The Author

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Dylan Scott is a reporter for Talking Points Memo. He previously reported for Governing magazine in Washington, D.C., and the Las Vegas Sun. His work has been recognized with a 2013 American Society of Business Publication Editors award for Best Feature Series and a 2010 Associated Press Society of Ohio award for Best Investigative Reporting. He can be reached at dylan@talkingpointsmemo.com.