It’s hard to believe that less than two months have passed since the Supreme Court struck down the Defense of Marriage Act and effectively ended Proposition 8.
It’s even harder to believe that we already need to be watching the courts again.
There are of course the various marriage equality cases that are peppering the country, but they are part of the last battle. Barring major changes to the Supreme Court, the question is less about if they will recognize a right to same-sex marriage than how many states will have already granted it.
The new battle is about how individual rights will interact with religious and corporate rights. If the cases aren’t on your court-dar, it may be in part because they’re not about marriage. They’re about contraception and Obamacare, but they could have a huge impact on LGBT rights.
The cases are Hobby Lobby Stores Inc. v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius. Simply put, the question is if and how a for-profit corporation can express religious freedom; in these cases specifically regarding the mandate to provide contraception coverage.
Four years ago, this might have been an almost laughable question. In light of the Citizens United decision granting corporations’ free speech protections, however, it has become legitimate to wonder which other rights corporations have.
Hobby Lobby is a privately owned chain of craft stores whose owners felt that covering emergency contraceptives was contrary to their religious beliefs. In June, the Tenth Circuit Court of Appeals ruled that “as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations” and upheld an injunction preventing the enforcement of that part of Obamacare.
Writing last month that “We respectfully disagree with that Court’s analysis,” the Third Circuit Court of Appeals ruled that the Conestoga Wood Specialties Corporation did not have a right to religious expression that would negate their need to comply with Obamacare.
Few situations provide a faster track to Supreme Court review than dueling circuits. If the business friendly majority that decided Citizens United agrees with the Tenth Circuit, the rights that the LGBT community has won at the state and federal levels could come under corporate assault.
Why? If Hobby Lobby doesn’t have to provide contraception based on their religious beliefs, would they have to hire LGBT people? Provide benefits to same-sex partners and spouses? Allow family leave to adopting same-sex couples?
Sadly, this isn’t new territory. Religious freedom arguments have often been the last refuge for those wishing to continue persecution and oppression. In the past, though, that freedom has only been extended to individuals and organizations with expressly religious purposes, which is as it should be.
Extending such rights to corporations designed for profit, whose owners suddenly don’t like a law, risks declawing a considerable amount of civil rights legislation. Since most people cite a religious reason for anti-LGBT stances, how would an Employment Non-Discrimination Act be enforced if a corporation need only cite a religious objection to trump it?
It’s no secret that many of the legal precedents for LGBT rights are based on cases involving women’s rights. Less often discussed is that those precedents are still being set, and we need to keep an eye on them as we have successes in our own litigation. In the meantime, we can build a buffer by supporting and growing our corporate partnerships.
