Editor’s Note: This is a guest post by Elizabeth Deutsch. Elizabeth Deutsch is a student at Yale Law School. She holds an MSc in Gender from the London School of Economics. She enjoys long walks on the elliptical.
We’ve all read a lot about the big picture of what the Court decided in the contraceptive mandate case, Burwell v. Hobby Lobby. A few things are clear from the court’s language: some for-profit corporations can exercise some religious beliefs under the Religious Freedom Restoration Act (RFRA). Specifically, closely held corporations like Hobby Lobby with religious objections to contraception can get out from under the Affordable Care Act’s contraceptive mandate. But it’s much less clear what the Court’s language spells for future cases outside the contraception context. In looking at the future, I want to focus on what the Court didn’t say, and what that might spell for Hobby Lobby’s reach with respect to LGBT discrimination, which is already being tested by religious groups who want to evade the Obama’s LGBT hiring order for federal contractors.
Looking at what the Court did not say this much becomes clear: the reach of this precedent may be — as Justice Ginsburg’s dissent foretells — “sweeping,” with potential reverberations well beyond contraception access. Some news analysts have bought in to the majority’s line that this decision is “narrow.” They point to the majority’s statement that this decision does not provide a “shield” for “discrimination in hiring, for example on the basis of race” that “might be cloaked as religious practice” to escape antidiscrimination laws like Title VII (which protects workers from discrimination by their employees on the basis of race, national origin, or sex). While this language provides some assurance that Hobby Lobby doesn’t give employers license to claim that their religion would dictate that they only hire white staff, for example, the opinion is noticeably silent on the question of protections for other groups. And this should trouble us.
The fact that the majority didn’t mention other groups does not mean that Hobby Lobby necessarily gives corporations license to discriminate against those other groups. One could argue that Alito could not possibly have listed every claim that Hobby Lobby doesn’t sanction (which, some commentators have rightly pointed out, is exactly why the Court’s decision is so dangerous), and he adds “for example,” to modify his use of race in the text. So his failure to mention other forms of discrimination—sex discrimination, for example, which, like race discrimination, is barred under Title VII—might mean nothing.
However, the majority’s failure to name sexual orientation or gender identity discrimination might well not be an entirely accidental omission. Here’s why. RFRA analysis entails demonstrating that the “burden on religious exercise must serve a compelling government interest.” The opinion goes on to state that this test, and the Hobby Lobby decision, couldn’t possibly be read as giving employers license to discriminate on the basis of race because Title VII has established that 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 this critical goal.” That works for race. And it should work for sex (but, as many critics have pointed out, the Court’s decision arguably amounts to sex discrimination by singling out a medication needed by women). But this doesn’t work for LGBT persons. At least, it doesn’t work yet.
This is because we haven’t passed the Employment Non-Discrimination Act (also known as ENDA, the federal bill that would extend workplace antidiscrimination protection on the basis of sexual orientation and gender identity). LGBT workers are not explicitly protected under Title VII (though some courts have extended the protection against sex discrimination to, in some cases, apply to LGBT individuals). What’s more, the Court hasn’t announced sexual orientation or gender identity as a suspect classification, meaning it has not spoken clearly on whether or not acts that discriminate on the basis of sexual orientation or gender identity receive any kind of heightened judicial scrutiny (the way sex and race do). And heightened judicial scrutiny would help to ensure that orientation discrimination satisfied the compelling interest test demanded by RFRA. The Court, in fact, went out of its way to avoid announcing heightened scrutiny for classifications based on sexual orientation in last year’s decision in Windsor, striking down the federal Defense of Marriage Act.
So this leaves us wondering whether the majority has opened the door for companies to discriminate on the basis of sexual orientation or gender identity due to a claim of religious belief. We’ve seen some of these cases start to percolate in lower courts, even before the Hobby Lobby decision came down. This year, for example, the Court declined to hear one such case. Elane Photography LLC v. Willock involved a wedding photographer who denied her services to same-sex couples in violation of a state law that banned businesses open to the public from discriminating on the basis of sexual orientation. Elane Photography claimed that it “did not want to convey through . . .pictures the story of an event celebrating an understanding of marriage that conflicts with [the owners'] beliefs” and challenged the ability of the state to pass a law preventing that kind of discrimination. It’s unclear what Hobby Lobby might mean for cases like Elane in the future. Or what it might mean in the context of discriminatory employment practices.
The pressure is on for Congress; not only pressure to undo the Court’s rejection of the contraceptive mandate with a legislative fix, but also to get ENDA passed so that Title VII protections for LGBT individuals are on the books before they’re tested in the Court.