LGBTQ rights, particularly marriage equality, have made incredible advances over the past year. But, like other great human rights struggles, organized opponents are working hard to contain and undermine movement gains.
Many in the LGBTQ community may be unaware of the Religious Right’s strategy to undermine civil rights gains by establishing ever-larger exemptions from state and federal laws. But in a landmark decision focused on employers’ responsibility for contraceptive coverage under the Affordable Care Act, the Supreme Court has given the Right’s efforts a big boost—with potentially far-reaching implications.
What good is a right if you can’t exercise it?
While they’ll seldom admit it in public, leaders of the Religious Right understand there has been a cultural sea change regarding homosexuality. Marriage equality and workplace non-discrimination are on course to become the law of the land.
Faced with this reality, Religious Right legal groups like the Becket Fund for Religious Liberty and the Alliance Defending Freedom (ADF, formerly known as Alliance Defense Fund) have been working hard on a back-door strategy to limit the reach of court and legislative wins for the LGBTQ community.
Despite existing protections and exemptions for religious institutions, the Religious Right is now seeking to expand the range of institutions and individuals that can claim religious exemptions to laws that protect our constitutional rights.
As a result of this week’s Hobby Lobby ruling by the U.S. Supreme Court, a for-profit corporation has, for the first time in U.S. history, been endowed with the right to discriminate on the basis of religious convictions, throwing open the door for an expanded wave of attacks on LGBTQ people, including on marriage equality.
But the Right’s attacks are not just coming via the courts. We are also seeing conservative state legislatures advancing legislation that would carve out exemptions for “sincerely held religious beliefs.” These exemptions could be used to legalize, and institutionalize, discrimination against both LGBTQ employees and consumers.
Both the Hobby Lobby decision and legislation proposed in a number of states (passed in Mississippi) argue that “sincerely held religious belief” should trump state and federal laws—including long-established civil rights laws.
Earlier this year, the national LGBTQ community erupted in protest (rightly so) when conservative legislators in Arizona passed SB 1062, the “Religious Freedom Restoration Act,” which would have allowed private business owners to refuse services to LGBTQ customers on the basis of the owners’ religious beliefs.
Thanks in no small part to the enormous response of the LGBTQ community, the Act was vetoed by Governor Jan Brewer. Just one month later, however, the Mississippi legislature passed a nearly identical bill, which was quickly signed into law by Governor Phil Bryant.
But mainstream LGBTQ organizations made no similar showings in the course of the Hobby Lobby v. Burwell decision.
In Hobby Lobby, the owners of a private, for-profit, national craft store chain successfully won an exemption from a preventive health care provision within the Affordable Care Act, which requires that employee’s health insurance include coverage for birth control methods such as morning-after pills and intrauterine devices, claiming that doing so violated their company’s religious liberty.
Religious liberty is a foundational principle in our democracy, yet it is being eroded, manipulated, and redefined by the Right. Allowing businesses the right to discriminate against employees and customers according to their owners’ religious beliefs effectively transforms the Framers’ shield against religious tyranny into a sword institutions can wield to impose religious dictates on individuals in the marketplace.
The Hobby Lobby decision focused on contraceptive issues, and there’s a lesson in that for the LGBTQ community. Religious “conscience clauses” in many states entitle doctors and pharmacists to refuse to offer reproductive health services they object to.
For decades, the Religious Right has been whittling away at the 1973 Roe v. Wade Supreme Court decision which decriminalized abortion. As a result, while Roe still stands, women do not have anything close to the access to abortion care that is needed. This is due, in large part, to the Right’s long-term strategy to erode access in the name of “abortion reduction”—in case it was unable to overturn Roe. This strategy has worked shockingly well.
What good is a right if you can’t exercise it?
Exemptions can beget exemptions. It takes no stretch of the imagination to envision dozens of lawsuits seeking to build upon the Hobby Lobby ruling and to foresee legislation pushing the boundaries of what classifies as permissible bigotry. A generation of litigation, testing the breadth and depth of the corporate exemption, has just begun.
If corporations are able to pick and choose which civil rights laws will apply to them, the rights of all Americans are at risk, not just LGBTQ rights or sexual and reproductive health and rights.
The Mississippi law (which will almost certainly be challenged in federal court), is much more direct in applying the standard of “sincerely held religious belief” to legalize overt discrimination against LGBTQ people.
Indeed, it seems likely that the Supreme Court will soon be asked to decide whether “sincerely held religious belief” allows business owners to discriminate against LGBTQ customers and employees.
The implications of this campaign are clear. If corporations enjoy exemptions from federal laws in the name of religious freedom, the rest of us may be forced to choose between our livelihoods and our consciences.
If a business owner happens to believe God demands women always be subservient to men, could the company legally be allowed to deny women managerial positions?
As Justice Ginsberg noted in her dissent of the Hobby Lobby ruling, could businesses owned by Scientologists deny health care coverage for antidepressants? Jehovah’s Witnesses don’t believe in whole-blood products; even if you don’t happen to share that faith, could your boss nevertheless deny you coverage for surgeries?
There are dozens of conservative-dominated state legislatures around the country that might add religious liberty exemptions to state laws—and perhaps even their state constitutions—specifically to ensure that even if the LGBTQ community wins the protections it deserves, many businesses and individuals will be under no obligation to honor those legal protections.
Such proposals are already being floated in Utah, Idaho, Georgia, and beyond.
The Religious Right has cast itself in the role of heroic defender of religious liberty. But we are not fooled.
Contributing: Frederick Clarkson.