Post submitted by Caroline Mala Corbin
The United States has made tremendous progress on LGBTQ rights. We are, after all, celebrating the one-year anniversary of Obergefell v. Hodges and marriage equality. White House executive orders and EEOC guidelines have also expanded anti-discrimination protections. At the same time, there is still much that needs to be done. Congress has not amended civil rights law to bar LGBTQ discrimination in employment, education, housing, or public accommodations. Even when such protection exists, individual, organizations, and businesses have claimed they have a religious right to discriminate against the LGBTQ community. In particular, the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc. expanded the Religious Freedom Restoration Act (RFRA), raising concerns about RFRA’s use as a means to discriminate in the name of religious freedom.
Hobby Lobby was a challenge to the Affordable Care Act requirement that large employers include FDA-approved contraception in their health care plans. Hobby Lobby Stores, Inc., a billion-dollar chain of arts and crafts stores with thousands of employees, argued that it was religiously opposed to certain forms of contraception and that consequently this contraception benefit violated its RFRA rights. Under RFRA, “persons” are entitled to exemptions from federal laws that impose a substantial burden on their religious conscience unless the challenged law passes strict scrutiny. A law passes strict scrutiny if it advances a compelling state goal in a narrowly tailored way. While RFRA itself applies to federal law, many states have counterparts that apply to state law.
Who is a “person”?
A threshold question in Hobby Lobby was whether businesses were “persons” protected by RFRA. The Supreme Court held that closely-held for-profit corporations may indeed bring RFRA religious liberty claims. Consequently, it is not just individual people who can assert that their religious faith entitles them to an exemption from anti-discrimination laws, but employers and public accommodations. As a result, the company that hired you, the rental agency that dominates your housing market, the neighborhood stores, restaurants, gyms and dry cleaners that provide you goods and services, potentially all of them can seek a religious exemption from anti-discrimination laws.
What is a substantial burden?
Although RFRA only grants religious exemptions from laws that substantially burden religion exercise, Hobby Lobby recognized “facilitation” as a substantial religious burden. The claim in Hobby Lobby was not that anyone was forced to take the offending contraception. Rather, the complaint was that the company had to do something – include contraception in their employees’ health care plan – that enabled someone else to take contraception. But if merely “facilitating” third party conduct that one disapproves of satisfies RFRA, there is no limit to the number of possible religious exemptions. Wedding vendors have already refused to sell a dress or arrange flowers or bake a cake for a same-sex ceremony on the grounds that it facilitates conduct their religion condemns. The facilitation claim could easily be expanded to the provision of any goods or services to same-sex couples. If providing contraception insurance facilitates sin, why not providing health insurance to same-sex spouses? Or providing a home, or home furnishings to a newly wed LGBTQ couple? Hobby Lobby provides no limiting principle. On the contrary, it suggests that courts should defer to claims of substantial religious burden: “It is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our narrow function ... in this context is to determine whether the line drawn reflects an honest conviction.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014).
How strict is the scrutiny?
Not all strict scrutiny tests are the same. Some are “strict in theory and fatal in fact.” Some are “strict in theory and feeble in fact,” which was the case in Free Exercise Clause challenges. In concluding that the contraception benefit failed strict scrutiny because the government had other more narrowly tailored ways of delivering contraception to employees (such as the government or insurance company providing it), Hobby Lobby interpreted RFRA’s strict scrutiny to be the former rather than the latter. As a result, religious objectors are entitled to a RFRA exemption from any law alleged to be religiously burdensome law if the government could have achieved its compelling ends by some alternate means.
The silver lining
In holding that the contraception benefit failed strict scrutiny, however, the Supreme Court assumed that the alternative of a third party providing contraception would not detrimentally affect women who relied on contraception. Whether true or not, the Court seemed persuaded that the proposed accommodations’ effect “on the women employed by Hobby Lobby … would be precisely zero.” However, if an accommodation did undermine the government’s goal – such as its goal to end harmful discrimination – the outcome might well be different. Consequently, despite ratcheting up the level of scrutiny, Hobby Lobby suggests that challenged laws may well pass strict scrutiny if the proposed accommodations had negative as opposed to “zero” effects on the government goals.
Moreover, Hobby Lobby held that anti-discrimination laws in particular could pass strict scrutiny. “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. 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.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2783 (2014).
Ultimately, what Hobby Lobby means for LGBTQ rights probably hinges on the composition of the Supreme Court. Legally, LGBTQ-based and race-based discrimination are not yet on equal doctrinal footing. Therefore while Hobby Lobby’s staunch defense of race-based protections ought to extend to all anti-discrimination laws, there is no guarantee that it will. Furthermore, even if Hobby Lobby precludes RFRA accommodations that cause serious harm, a Court must be willing to recognize the harm. When addressing RFRA exemptions from anti-discrimination law, the Court might ignore the dignitary harms of being treated like a second-class citizen and conclude that religious refusals cause no serious harm if a LGBTQ couple could obtain a home, employment, or services elsewhere. In short, whether RFRA creates a license to discriminate may depend on the next Supreme Court appointee.