LGBT Loophole

Five Nightmare Scenarios The Supreme Court Unleashed With The Hobby Lobby Decision

800px-United_states_supreme_court_building-670x437-360x234When the Supreme Court hands the LGBT community a victory, it’s hard to hide it. After all, allowing states to legalize marriage is not something you can sneak by the nation. But when the Supreme Court unleashes a nightmare, it’s not easy spot. But that’s exactly what the court did this week in a ruling that has the potential to wreak havoc on everything from marriage equality to HIV treatments.

The case involved the craft-store chain Hobby Lobby. The store had sued the federal government because it did not want to provide contraceptives to employees, as mandated under the Affordable Care Act. Hobby Lobby objected on religious grounds, arguing that corporations have the same right to religious expression as individuals.

The Supreme Court agreed. In his majority decision, Justice Samuel Alito took pains to insist that the ruling applied only to “closely-held” corporations and even more specifically was “concerned solely with the contraceptive mandate.”

Don’t you believe it.

With the ruling, the Court has created a giant legal loophole that the religious right will exploit for years to come. And a lot of that legal challenge will be directed toward gay issues. It’s not a coincidence that the legal group representing Hobby Lobby, the Becket Fund for Religious Liberty, titles itself after the same principle that opponents of marriage equality keep trumpeting. 

Now Alito was careful to say that the decision didn’t allow corporations the right to “provide a shield for employers who might cloak illegal discrimination as a religious practice.” But Alito’s definition of illegal discrimination may not extend to LGBT rights. The only example he cited in his ruling involved racial discrimination. He was conspicuously silent on other types of discrimination, including discrimination based on sexual orientation or gender identity. 

That has opened the door to legal challenges from antigay opponents. Already, the impact of the ruling is expanding. The Justices granted Wheaton College, an evangelical institution known for its antigay policies, an exemption from responding to certain requirements of the Affordable Care Act on religious grounds, even though Wheaton is not a closely held corporation.

In her dissent, Justice Sonia Sotomayor complained that the Court had changed the playing field just three days after the Hobby Lobby ruling. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”

“The Supreme Court has ruled that for-profit corporations have religious rights and have accorded them religious exemptions,” said Doug Kendall, president of the Constitutional Accountability Center. “Despite their attempts to qualify that ruling, it opens the floodgates to claims by corporations for religious exemptions.”

Now that the floodgates are open, expect the challenges to follow. Here are five nightmare scenarios that are now possible because of the Hobby Lobby ruling.

1. A corporation refuses to offer benefits to same-sex married couples, even in states that recognize those marriages.

The Hobby Lobby ruling allows corporations raise objections to laws others have to follow because of “sincerely held beliefs.” Is there any belief more sincerely held by religious conservatives than that the state shouldn’t acknowledge same-sex relationships? Imagine the weight of a corporation brought to bear on HR policies regarding gay couples. It could make the debates about refusing to bake wedding cakes seem like small in comparison.

2. A business refuses to hire any openly LGBT employees. Alito said that the Hobby Lobby ruling denies that “discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction.” On the basis of race, perhaps. But not necessarily on other grounds. A business that is vehemently antigay would be willing to test supposition in court. They may not succeed, but there’s no guarantee that they wouldn’t. And it won’t be just hiring practices. The problem might not stop at the workplace: it could be extended to real estate transactions as well.

3. A company objects to providing HIV prevention drugs. Pre-exposure prophylaxis (PrEP) dramatically cuts the risk of HIV transmission, and gay men by the thousands are signing up for the prescription medication (Truvada). But it’s expensive, and in most cases it needs to be covered by company medical insurance. But it could be considered a kind of HIV-prevention–like a condom. Companies run by antigay activists, who often cloak bigotry in religious terms, could easily argue that it is tantamount to encouraging sodomy. We already know how some religious conservatives feel about condoms. The Hobby Lobby decision doesn’t really differentiate among the types of treatments that can’t be challenged on religious grounds. Once again, it will be left to other courts to sort that out.

4. Trangender people are shut out of medical benefits. More and more, courts are recognizing gays and lesbians as a class that deserves protection under the law. However, not so for transgender people, for whom legal protections are still lagging. Jenny Pizer, law and policy director at Lambda Legal, says that companies could object to medical treatments that transgender employees need, using objections to the treatments themselves as the excuse. That would be an easier case to win, unfortunately, than one targeting employees for gender identity.

5. The proposed executive order banning workplace discrimination by federal contractors could be in jeopardy. Within a day of the Hobby Lobby ruling, an argument broke out about the proposed executive order banning workplace discrimination among federal contractors. “The government would be saying you can’t get the benefits of getting a federal contract unless you give up your religious liberty rights,” said Kevin Theriot, vice president of Alliance Defending Freedom, a religious right legal group. “It’s another form of coercion.”

There’s already talk about putting a big, fat religious exemption into the executive order, which would lessen its impact and enshrine the right of federal contractors to discriminate.