Last year, the decisions of the Supreme Court’s June term were met with joyful celebration in San Diego’s LGBT community, with decisions bringing an end to both California’s Proposition 8 and part of the Defense of Marriage Act.
The final day of the 2014 spring Supreme Court term was markedly different, with decisions that clearly undermine the rights of women and unions and which could create a religious escape hatch for laws that prevent discrimination against the LGBT community. The only thing the two years have in common is that Justice Anthony Kennedy continues to side with us.
In Burnett v Hobby Lobby, the court decided 5-4 that corporations could exercise religion and that the Affordable Care Act’s mandate to cover contraception, at least in certain forms, violated that expression of freedom.
In many ways, it could have been worse. For now, the ruling applies only to corporations controlled by a few people, and only when the government has a better way to solve the problem (in this case using the same system already in place for religious non-profit organizations).
Unfortunately, it turns out that “closely held” doesn’t mean small. The Dole Corporation and Ernst and Young might both gain rights under this decision, and might not have to cover contraception in health care.
Frighteningly, the Hobby Lobby decision is even bigger than that. Read broadly, the Supreme Court said corporations can express a religious preference. If they can choose not to cover contraception, can they choose not to cover people whose “lifestyles” stand in opposition to their religious beliefs? Can a Christian business fire people for being gay, even if ENDA passes?
Justice Kennedy tried to say “No”. He voted with the majority, but wrote a separate opinion trying to limit the scope of the decision when it impinges on other people’s rights. Still, it’s a reminder that five jurists can limit our rights for years to come.
That, oddly, brings us to Harris v. Quinn, in which the same 5-4 split determined that home health workers couldn’t be forced to pay union dues. Again, it could have been worse. Instead of deciding that states couldn’t make government employees pay union dues, they decided that home care workers weren’t really union employees, because they work for individual patients. It was a nice dodge, but Justice Alito threw open the door to challenging union dues in general.
That hurts our community. Whatever you think of unions, they were a critical part of Harvey Milk’s coalition. In states that don’t have an ENDA, union rules protect LGBT workers. That could become important should the court look at whether religious corporations can fire LGBT employees for living in opposition to their beliefs.
Sounds scary. What can we do? Vote. On these decisions, the justices split based on who appointed them, with five Republican appointees telling four Democrats how to limit a woman’s right to choose and union membership. Supreme Court justices are appointed by the president and approved by the Senate, and four of them are over 70. In 2014 and 2016, don’t just look at who’s best for your wallet. Look at who will approve justices who will protect your rights.
