Will the Supreme Court Issue a License to Discriminate?
The nationwide outcry over Arizona’s anti-LGBT law was swift and severe. Amid mounting pressure from leading Republicans in her own state as well as the business community and others, Gov. Jan Brewer vetoed the law on Wednesday night.
Unfortunately, Arizona is far from the only state where lawmakers are contemplating bills that would give the government, private businesses, and others the a license to discriminate under the guise of “religious liberty.” As Planned Parenthood President Cecile Richards wrote yesterday, “this didn’t start with Arizona, and it won’t end with Arizona.”
Indeed, proposals similar to the Arizona law have been introduced recently in states across the country, including Georgia, Hawaii, Idaho, Maine, Mississippi, Missouri, Ohio, Oklahoma, Wisconsin, Kansas, and South Dakota, and Tennessee.
The Missouri proposal was actually introduced in attempt to model the Arizona bill, but the backlash over Arizona helped propel measures in other states to outright defeat or at least has them on ice for the moment.
As bad as these bills are, they pale in comparison to the damage the Supreme Court could do with an erroneous ruling in the upcoming Hobby Lobby and Conestoga Wood cases. While these cases are specifically about the Affordable Care Act’s birth control benefit, the High Court could open the floodgates to discrimination in the name of religious belief.
ThinkProgress’ Ian Millhiser explains how the Supreme Court could essentially impose an Arizona-style law on steroids nationwide:
If this issue sounds familiar, it should, because it’s the exact same issue behind two of the most high profile Supreme Court cases being hear this term — Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius. In both of those cases, for-profit businesses object, on religious liberty grounds, to complying with Obama Administration rules increasing access to birth control. One of the most important questions presented by both cases is whether a for-profit corporation can have religious faith at all, and if so, whether it can use that supposed faith as the basis for a legal claim.
So if the Supreme Court agrees with the plaintiffs in these cases that corporations aren’t just people, but they can also be people of faith, the outcome will be very similar to what would happen if Congress had taken the bill Brewer just vetoed, passed it at the federal level and then President Obama had signed it into law — except, of course, for the fact that no one on the Supreme Court was actually elected to make law.
Last year, some of our Center for American Progress colleagues wrote about the dangerous slippery slope we could all go sliding down if the Supreme Court agrees that corporations are not only people, but people entitled to religious beliefs. Such a decision poses a very real threat to core civil rights protections in this country:
- Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex, race, color, national origin, or religion. But if for-profit corporations have religious beliefs, they will be able to argue they have the right to side-step Title VII and, for example, hire only those who sign a “statement of faith” or share the same religious beliefs.
- The Pregnancy Discrimination Act, which is part of Title VII, protects against sex discrimination on the basis of pregnancy, but for-profit corporations may try and use their newly found religious rights to fire unmarried pregnant employees.
- The Fair Housing Act makes it illegal to discriminate on the basis of sex, race, color, national origin, or religion, unless you qualify for certain religious organizations exemptions. If for-profit corporations have religious rights, then property-management firms may argue their religious beliefs do not support certain lifestyles such as living together before marriage. They may choose not to rent or sell to those engaging in the unapproved conduct.
- Many states have public accommodations laws that prevent discrimination based on sexual orientation. A holding that a corporation can be exempt from basically any federal law because of its owners’ religious beliefs could lead to similar state law exemptions. (See Elane Photography v. Willock.)
The Supreme Court hears oral arguments in these cases on March 25, so the timing of this growing national backlash against discrimination under the guise of religious liberty could not be better. Justice Anthony Kennedy, who is frequently the Court’s swing vote, has a long history of supporting LGBT rights, including authoring last year’s historic decision striking down the Defense of Marriage Act. That decision has nationwide marriage equality barreling back toward the Supreme Court at breakneck speed.
As Millhiser wrote earlier this week, the Arizona backlash could be of tremendous benefit in the upcoming cases:
The last time a conflict between gay rights and religious conservatives reached the Supreme Court, Kennedy broke with his fellow conservatives and sided with gay equality. [...]
But if Kennedy views Hobby Lobby and Conestoga Wood and a broad attack on the idea that religious employers have to comply with the law, and specifically, with laws protecting gay people, then he is much more likely to uphold the birth control rules.
The plaintiffs’ legal theory in Hobby Lobby and Conestoga Wood would, in the words of a brief filed by attorneys from Lambda Legal, “mark a sea change – not only in allowing business owners’ religious views about family planning to burden decisions employees are entitled to make for themselves, but also in opening the door to similar denials of equal compensation, health care access, and other equitable treatment for LGBT people, persons with HIV, and anyone else whose family life or health need diverges from their employers’ religious convictions.” If birth control loses in Hobby Lobby and Conestoga Wood, it is all but certain that gay rights will be next on the chopping block.
Stay tuned for more on the potential consequences of the Hobby Lobby case.
BOTTOM LINE: Religious liberty is a core American value and progressives believe in religious liberty for all, not just for some. Religious liberty means religious liberty for everyone. And that includes the freedom from having the theological doctrines of your boss or those of business owners in your community being forced upon you.
The Arizona law and the upcoming Supreme Court cases are not really about religious liberty, they are about minority of individuals seeking a license to ignore laws and regulations they disagree with in order to discriminate against LGBT people, women, and others.