An eight-judge panel of the United States Court of Appeals for the Tenth Circuit struck a major blow against Obama Administration rules ensuring that most workers’ health plans will cover birth control. Although Thursday’s decision in Hobby Lobby v. Sebelius leaves a few procedural stones unturned before courts can begin carving holes in the birth control rules, it leaves little doubt that a majority of the court’s judges will allow employers with religious objections to birth control to withhold birth control from their employees.
The Supreme Court established more than three decades ago that a company may not “impose the employer’s religious faith on the employees.” As the 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.” So there should be little doubt that the employer in this case, a national chain of crafting retailers, must comply with a law requiring them to include birth control coverage in their health plans. Religious objections cannot be imposed upon an employer’s workers.
The Tenth Circuit’s majority, however, brushes past this aspect of the Lee opinion, although it somehow manages to rely on Lee for the proposition that religious employers’ right to immunize themselves from the law is much more robust than many other courts have held. Simply put, the opinion is a disaster for workers whose bosses cite religious justifications for ignoring their employees’ legal rights.
The majority opinion does not simply conclude that a for profit corporation may assert a religious objection to a law — itself a questionable proposition — it even opens the door to “a large publicly traded corporation tr[ying] to assert religious rights” (although the court does admit that it would be difficult for Walmart to prove that its alleged religious beliefs are sincere). It defines an important limit on religious liberty cases, the requirement that the plaintiff show that a law “substantially burdens” their exercise of religion, so narrowly as to render this limit a nullity in many cases. And it even includes some language suggesting that religious employers could successfully object to laws ensuring “gender equality.”
The last part of the court’s reasoning is significant because it portends the next strike religious conservatives are likely to launch if they win their case against the birth control rules — empowering people with conservative religious beliefs to ignore anti-discrimination laws. As social conservative writer Ross Douthat argued shortly after the Supreme Court struck down the Defense of Marriage Act, the march towards marriage equality may be inevitable, but conservatives can still undermine this march by “build[ing] in as many protections for religious liberty as possible along the way.” Similarly, laws forbidding discrimination against gay workers will be drastically reduced in effectiveness if employers who bear religiously motivated animus against gay people can simply ignore those laws. Today, religious conservatives have their sights set on women who use birth control. If they win, gay people are next.