Photo: U.S. Supreme Court. Credit: Todd Franson/Metro Weekly.
The U.S. Supreme Court’s decision last week in the Hobby Lobby case, which found some religious employers can refuse to pay for insurance coverage of contraception under the federal Religious Freedom Restoration Act, appears to have only fueled the growing clash over religious liberty and LGBT rights.
In a July 1 letter to President Barack Obama, religious leaders friendly toward the White House in the past urged the president to include a religious exemption in an announced LGBT nondiscrimination executive order.
Fourteen faith leaders, including Rick Warren of the Saddleback Church, who delivered the invocation at Obama’s first inauguration, attached their names to the letter asking that an executive order currently being drafted by Obama’s staff that would prohibit federal contractors from discrimination on the basis of sexual orientation and gender identity include a religious exemption similar to one present in the Employment Non-Discrimination Act.
“With respect to the proposed executive order, we agree that banning discrimination is a good thing. We believe that all persons are created in the divine image of the creator, and are worthy of respect and love, without exception,” reads the letter, which was obtained by The Atlantic. “Even so, it still may not be possible for all sides to reach a consensus on every issue. That is why we are asking that an extension of protection for one group not come at the expense of faith communities whose religious identity and beliefs motivate them to serve those in need.”
The letter comes as a debate has reemerged among activists over the scope of ENDA’s religious exemption — a point of contention that has long plagued the bill as currently written.
The American Civil Liberties Union (ACLU), Lambda Legal, the National Center for Lesbian Rights (NCLR) and the Transgender Law Center released a joint statement in April 2013 “expressing very grave concerns with the religious exemption in ENDA.”
“It could provide religiously affiliated organizations – far beyond houses of worship – with a blank check to engage in employment discrimination against LGBT people,” the statement continued. “It gives a stamp of legitimacy to LGBT discrimination that our civil rights laws have never given to discrimination based on an individual’s race, sex, national origin, age, or disability. This sweeping, unprecedented exemption undermines the core goal of ENDA by leaving too many jobs, and LGBT workers, outside the scope of its protections.”
They argued, for example, that the religious exemption as written could allow for a Catholic hospital that employs people of other faiths to still be able to fire or refuse to hire an LGBT person.
Some groups, including NCLR and the Transgender Law Center, which both lauded ENDA’s passage in the Senate last year, have since rescinded their support for the bill due to the religious exemption. But while they argue ENDA’s religious exemption as written is broader than it is under Title VII of the 1964 Civil Rights Act for other minority groups, and would open the door to LGBT discrimination in places far beyond churches and synagogues, narrowing ENDA’s religious exemption could also cause shaky Republican support to collapse entirely.
While activists determine the best strategy for ENDA to move forward in the Republican-controlled House of Representatives, many have pushed back against the idea of a religious exemption in the executive order that President Obama is expected to sign.
Nevertheless, the religious leaders write, “Without a robust religious exemption, like the provisions in the Senate-passed ENDA, this expansion of hiring rights will come at an unreasonable cost to the common good, national unity and religious freedom.”
The White House has not commented on what exactly will be present in the executive order, or an additional executive order announced by Obama that will protect transgender federal employees from discrimination. “That’s an executive order that’s still being drafted, and so I wouldn’t want to speculate about the contents of that order until it’s been finalized,” White House press secretary Josh Earnest told reporters last week.
The debate over religious liberty and LGBT protections extends beyond Washington as well. One day after the Supreme Court handed down the Hobby Lobby decision, Mississippi enacted a state Religious Freedom Restoration Act (RFRA), which seeks to ensure “that state action or an action by any person based on state action shall not burden a person’s right to the exercise of religion.” When the law was being considered by lawmakers earlier this year, advocates argued the bill’s broad language would allow those burdens to include nondiscrimination laws. The bill mirrored a controversial measure approved by Arizona lawmakers and vetoed by Arizona Gov. Jan Brewer (R) in February following national attention.
With social conservatives praising the Supreme Court’s Hobby Lobby decision as a victory for religious liberty, Mississippi Gov. Phil Bryant (R) pointed to the ruling as evidence that his state was justified in enacting their RFRA.
“Its decision confirms my position that our state did the right thing in enacting a state-level Religious Freedom Restoration Act and protecting religious liberty for Mississippians,” Bryant said in a statement. “The federal RFRA requires the government to prove that substantially burdening religious freedom is necessary to achieve a truly compelling government interest. The Obama Administration had other options for implementing its policy, yet it chose to try and force individuals to violate their strongly held religious beliefs. This proves how out of line and self-important this administration is and how out of touch this president is with the basic principles of freedom on which this nation was founded. Thankfully, cooler heads have prevailed, and the Court ruled on the side of freedom and religious liberty.”
The religious freedom law in Mississippi is part of a broader backlash to gains across the nation for marriage equality, specifically in states with nondiscrimination laws that encompass sexual orientation that have seen a growing number of conflicts. Many such bills have been spurred by cases like one in New Mexico, where the state’s highest court ruled a wedding photographer violated the state’s Human Rights Act by refusing service to a same-sex couple.
Bryant and others have rejected the argument that such religious freedom laws could spur LGBT discrimination. “The Court’s ruling also made clear that RFRA does not authorize unlawful discrimination. Mississippi’s RFRA statute, which takes effect July 1, is nearly identical to the federal law, and I hope the Court’s opinion proves to detractors of Mississippi’s law that claims of discrimination are baseless,” Bryant said.
Indeed, in the Supreme Court’s 5-4 majority opinion written by Justice Samuel Alito, it is emphasized that the decision only pertains to the contraception mandate of the Affordable Care Act. “Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice,” Alito wrote.
LGBT-rights advocates point to that passage as evidence that the Hobby Lobby decision should not be read as one that could be used to facilitate employment discrimination in the form of broad state RFRAs.
“Governor Bryant must be reading a different court decision. He’s just wrong. Wrong on the facts and he’ll be on the wrong side of history before too soon,” Fred Sainz, vice president of the Human Rights Campaign, told Metro Weekly. “There’s no doubt that individuals that want to continue to divide instead of unite will misuse the Hobby Lobby decision as license to discrimination. We’ll be vigilant against these attacks.”