WASHINGTON, D.C. - The Five Catholic Men who decided the Hobby Lobby case in the Supreme Court assured the country theirs was a “narrow” ruling, one that would only ever apply to closely-held corporations and insurance coverage for female contraception. Justice Kennedy went so far as to issue a separate concurring opinion just to stress “that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.”
It sure isn’t playing out that way a mere week later. The Court itself has issued another ruling, albeit temporary, related to its Hobby Lobby decision. And arguments about the collision of a newly expanded idea of religious liberty versus other rights are breaking out all over the place.
These are highbrow arguments for the most part that tend to strengthen civic health over time. But it is also clear that this is a newly antagonistic area where worlds collide, to steal a phrase from Seinfeld; some non-Christians, non-believers, women’s groups, and the gay rights community are all worrying that religious liberty is becoming a new cudgel against social change and other rights claims; some religious people feel there’s a new wave of aggressive secularism moving too fast.
There are several fronts in this clash.
The Supreme Court
In its Hobby Lobby decision, the majority assured female employees of companies and religious organizations that might be exempted from the so-called “contraceptive mandate” in the Affordable Care Act (aka Obamacare) that they would always be able to get the contraception of their choice through an alternate process that was already in place. Well, three days after this ruling the Court exempted Wheaton College in Illinois from that very process.
Wheaton College objected to the process because it felt that even signing a form asking for an exemption from the ACA contraceptive provision was a violation of its religious beliefs because it could be connected in some causal way to a woman using a form of contraception they oppose. The Court ruled for Wheaton.
The three women on the Court were upset. “Those who are bound by our decisions usually believe they can take us at our word,” Justice Sonia Sotomayor wrote. “Not so today.” She added the ruling “undermines confidence in this institution.”
There is something even more disturbing than the idea of the Court welching on its assurance.
It’s complicated but it goes something like this: The relevant law in Hobby Lobby says entities may be granted exemptions from certain laws when they inflict a “substantial burden” on the free exercise of their religious beliefs.
Wheaton says that signing a form asking for such an exemption and commencing a process whereby its employees’ rights are met by other means is such a “substantial burden.” Well, that is a very loosey-goosey concept of a “substantial burden,” a very expansive one. It could be applied by other entities to other laws in very promiscuous ways.
As Justice Sotomayor wrote, “Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.”
In the eyes of people that didn’t like Hobby Lobby in the first place, this ruling is another invitation for efforts to expand religious accommodations in this country.
Democrats in the House and Senate have drafted a bill that would essentially overturn the Hobby Lobby decision. The bill says that an employer “shall not deny coverage of a specific health care item or service” when such coverage is mandated under federal law. And the bill specifically rules out religious exemptions, except for non-profit religious organizations.
There has also been talk of amending the Religious Freedom Restoration Act, the 1993 law that guided the Hobby Lobby decision.
Neither effort is given much a chance in this Congress.
Workplace Discrimination Law
The Senate last fall passed the Employment Non-Discrimination Act (ENDA) that would protect the rights of gay and transgender people in the workplace. The District of Columbia and 21 states already have laws barring workplace discrimination based on sexual orientation and 17 states and the District also specifically prohibit discrimination based on gender identity.
But ENDA is dead in the House. The bill’s prospects took another hit after the Hobby Lobby ruling, when several big gay rights lobbies withdrew support for the legislation.
Why’d they do that? Because they are concerned that companies will use the kinds of religious exemptions to laws approved in the Hobby Lobby to get out of ENDA. They don’t think the law as drafted has enough protections against this.
“If a private company can take its own religious beliefs and say you can’t have access to certain health care, it’s a hop, skip and a jump to an interpretation that a private company could have religious beliefs that LGBT people are not equal or somehow go against their beliefs and therefore fire them,” said Rea Carey, the executive director of the National Gay and Lesbian Task Force, told The Washington Post.
Because ENDA hit a dead-end, President Obama announced he would use his much discussed executive powers to extend ENDA-like anti-discrimination requirements to federal contractors. This has turned into a major pickle for the Administration.
After Hobby Lobby, a number of religious groups, many allies of the Administration, sent the president a letter asking that religious organizations be exempted from the executive order.
They wanted to preserve, for example, the ability of a Catholic charity doing government funded relief work from not to have gay employees. “While the nation has undergone incredible social and legal change over the last decade, we still live in a nation with different beliefs about sexuality. We must find a way to respect diversity of opinion,” said the letter.
Then a week later, 100 religious leaders sent the president another letter insisting he go ahead and issue the anti-bias order without any special religious exemptions.The letter said, “We urge you not to include a religious exemption in the executive order. In keeping with the principle that our government must adhere to the highest standards of ethics and fairness in its own operations, we believe that public dollars should not be used to sanction discrimination.”
The letter went on:
“If contractors were allowed to selectively follow employment or other laws according to their religious beliefs, we would quickly create an untenable morass of legal disputes. Furthermore, if selective exemptions to the executive order were permitted, the people who would suffer most would be the people who always suffer most when discrimination is allowed: the individuals and communities that are already marginalized. Increasing the obstacles faced by those at the margins is precisely the opposite of what public service can and should do, and is precisely the opposite of the values we stand for as people of faith.”
Talk about a rock and a hard place.
There are going to be lots of rocks, lots of hard places and lots of lawsuits ahead. The Supreme Court insured that by saying the Religious Freedom Restoration Act applies to for-profit businesses and by setting wide-open criteria for asserting a “substantial burden” on the free exercise of religion.
Dick Meyer is Chief Washington Correspondent for Scripps News. An experienced writer, reporter and author, Meyer was executive producer for the BBC's news services in America, NPR's executive editor and editorial director of CBSNews.com. Meyer also wrote a book on American culture and politics, "Why We Hate Us: American Discontent in the New Millennium" (Crown Publishing/Random House, August 2008).