Back on defense

After The Hobby Lobby Decision, The March To Equality Faces New Hurdles

Scales of justiceWe’ve been on the winning side of things for so long, it’s hard to remember just how embattled the LGBT community once was just a few years ago.

But we’re about to get a refresher course. Just one week after the Supreme Court’s Hobby Lobby ruling, it’s clear that the legal and political landscape has totally changed. Instead of a rolling series of victories, we’re now faced with having to fight against the special right to homophobia accorded on the basis of religion minted by the conservative majority.

Two recent episodes illustrate just how different things have become. In Kansas, conservative legislators are taking the ruling as a green light to reintroduce a bill to protect “religious liberty,” by which they largely mean the right of homophobic bakers not to make wedding cakes for same-sex couples. A similar measure died in the last session, one of a series of like-minded (or, more appropriately, empty-minded) bills that were floated around the nation, most notoriously in Arizona. 

The fact that Kansas conservatives see the ruling as providing momentum underscores the fact that the Supreme Court decision will be used far and wide as a legal assault on LGBT rights. Strictly speaking, the ruling only applies to contraceptive coverage under the Affordable Care Act, but no one can now doubt that the majority justices — five Catholic men — unleashed a nightmare for us.

The other sign that the playing field is different is the decision by NGLTF, Lambda Legal, the ACLU and the National Center for Lesbian Rights to withdraw their support for the federal Employment Non-Discrimination Act on the grounds that religious exemptions in the bill are too broad. The groups fear that under the Hobby Lobby ruling, the exemptions would given a wide-range of businesses and institutions carte blanche to discriminate in the workplace.

ENDA has been on life-support for so long that pulling the plug hardly matters. It’s chances of passage in the Republican-controlled House are a mathematically certain zero. What matters is that religious exemptions that were once troublesome are now deal-breakers because the Supreme Court has conferred out-sized privileges on the basis of religious belief.

In essence, we’re entering a period of dueling rights: our right to marriage equality and workplace protection, and the right of religious conservatives to deny us that recognition. The Hobby Lobby ruling set up that tension, and it will play out in court for years to come.

In the end, our rights are more likely to prevail. Polling is trending decidedly in our favor. What we’re seeing is the last gasp of the antigay right trying to hold onto its urge to discriminate. Over time, that grasp is bound to slip, and the courts will revert back to a more narrow reading of the Hobby Lobby ruling. The tide of history remains on our side.

That doesn’t mean that the victory will be complete. Perhaps the Court did just make the world safe for homophobic wedding cake makers. What we will have to get used to is something we haven’t felt for some time: what it’s like to lose for a change.