In just a few hours, the Supreme Court is expected to complete its current term, and the justices will each head off to three months of vacation before the Court reconvenes next October. Before then the justices must resolve two cases, a case that threatens the very existence of many public sector unions, and the Hobby Lobby litigation seeking to immunize employers from laws their owners object to on religious grounds.
Should Hobby Lobby prevail, the immediate consequence will be that employers with religious objections to birth control will be permitted to ignore federal rules requiring employer-provided health plans to cover contraceptive care. In the longer term, however, the consequences of a victory for Hobby Lobby could stretch far beyond this one context. For decades, America’s religious liberty law has been guided by a simple principle — one person’s religious liberty stops at another person’s body. This principle is particularly robust when it is applied to private businesses. As the Supreme Court explained in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
Hobby Lobby asks the Court to abandon this principle, and to permit one person’s religious objections to diminish the legal rights of someone else. If the Court complies, here are six other groups that could bear the burden of that decision in the future:
1. LGBT Americans
Religious conservatives have made no secret about their desire to use “religious liberty” to immunize themselves from gay rights laws. That desire was the source of an Arizona bill that was ultimately vetoed by Gov. Jan Brewer (R), which sought to make it easier for people with anti-gay views rooted in their religious faith to discriminate against gay people. There have also been no shortage of lawsuits brought by anti-gay photographers, cake bakers and other business owners seeking a special right to discriminate. Although Hobby Lobby concerns a federal statute and many of these cases challenge state law, it is likely that religious conservatives will try to extend a victory in Hobby Lobby to cover anti-gay discrimination at all levels of government.
2. Workers Who Need Health Care Besides Contraception
Although Hobby Lobby is about contraceptive coverage, there is at least one precedent for a religious employer refusing to provide any health care benefits to many of its female employees. In the 1980s, a religious school called Fremont Christian claimed that “in any marriage, the husband is the head of the household and is required to provide for that household.” Thus, although Fremont offered health insurance to its workers, the plan was only available to single people or married men. Married women were generally expected to rely on their husbands for health benefits.
Though it is unlikely that the federal courts will rethink this case in its entirety and allow employers to deny coverage to women altogether, a victory for Hobby Lobby potentially places courts in the business of deciding which medical care can be denied on religious grounds. It could be up to judges to decide if employers who belong to sects of the Jehovah’s Witness faith that have religious objections to blood transfusions can refuse to offer health plans that cover such transfusions. Or whether religious business owners that object to vaccines can refuse to cover immunizations. Or whether those Christian Scientists who still object to modern medical science altogether can simply refuse to provide coverage at all.
3. All Other Victims Of Discrimination
In 1959, when a Virginia judge upheld that state’s ban on interracial marriage, he wrote that “[a]lmighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” Several years later, a religious college named Bob Jones University unsuccessfully argued in the Supreme Court that religious liberty entitled it to receive tax subsidies despite the fact that had a long history of racist policies. Though it is unlikely that the Court would reconsider Bob Jones in its entirety, several members of the House of Representatives introduced legislation requiring the government to continue to provide tax subsidies to many anti-gay non-profits. A victory for Hobby Lobby will only embolden lawmakers with similar ideas.
4. The Elderly
The Lee case — the case that most clearly established the principle that religious business owners cannot rely upon their religious faith to avoid compliance with laws that apply to all other businesses — involved an employer who claimed that the Constitution “prohibits forced payment of social security taxes when payment of taxes and receipt of benefits violate the taxpayer’s religion.” If the Supreme Court disturbs this principle, it at least opens the door to new challenges to programs such as Social Security which impose costs on businesses that some religious business owners may object to.
5. Low-Income Workers
A few years after Lee, another religious employer claimed that minimum wage laws “violate the rights of [their employees] to freely exercise their religion and the right of the [employer] to be free of excessive government entanglement in its affairs.” Though the Court rejected this claim, it is possible that other employers could seek a different outcome if the justices upend the longstanding limits on religious liberty claims articulated in Lee.
Finally, it should go without saying that a decision allowing Hobby Lobby and similar employers to deny birth control coverage to women will not only impact those women. It will also, in the words of Lee, “operate to impose the employer’s religious faith” upon most of these women’s sexual partners. Men, or at least, decent men, should care a great deal that the women they sleep with will not unexpectedly become pregnant. A victory for Hobby Lobby hurts them too.