After Arizona’s SB 1062, the Supreme Court Sees a Sequel

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March 25, 2014
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This morning, March 25, the U.S. Supreme Court is hearing arguments in two cases brought by for-profit corporations demanding special exemptions from the Affordable Care Act’s requirement that large employers provide comprehensive health insurance for their workers.

For female employees, “comprehensive” insurance coverage – and gender equity – mean including birth control. But the owners of Hobby Lobby, an arts and crafts retail chain with about 13,000 employees, and Conestoga Wood, a cabinet and furniture manufacturer with almost 1,000 employees, claim that providing such coverage violates their religious beliefs and practices.

As I’ve written before, the implications for LGBT individuals and people living with HIV are enormous.

It’s no secret that invocation of religious piety to excuse antigay discrimination remains all too common.The enthusiastic legislative support for Arizona’s SB 1062 certainly demonstrated as much. The bill’s sponsors were eager and righteous in their claim of a public “need” to secure merchants’ ability to turn away same-sex couples even before a nondiscrimination bill receives serious consideration in that state. They intended the bill as a preemptive exemption, if you will, anticipating that, eventually, LGBT people will request equal treatment in the marketplace, believing their money is as good as anyone’s for buying goods and services offered generally for sale.

Similar bills have been advanced in numerous states this year, including in Georgia, Kansas, Mississippi, and Missouri. And there’s an effort underway to put such a proposal before voters in Oregon this fall.

But when the glare of public attention focused on the discrimination SB 1062 was designed to bless, national corporate leaders from Apple to American Airlines to Marriott recoiled. They joined local business leaders calling on Governor Jan Brewer to block it. Mitt Romney, John McCain, and Newt Gingrich – infrequent champions of LGBT rights – then helped make it a chorus.

Whether inspired by desire to protect the Arizona economy from commercial rebuke like the boycotts that followed SB 1070 (the state’s anti-immigrant legislation of 2010), or an assessment that explicit homophobia has become an unwise political tactic, the chorus won a veto from a governor whose own staff had helped in the bill’s drafting. The Georgia, Kansas, and Mississippi bills also seem to have stalled, at least for this year. 

And yet, the pending Supreme Court cases – Hobby Lobby v. Sebelius and Sebelius v. Conestoga Wood – could accomplish through judicial decisions much of what was too extreme even for the extreme politics of Arizona and these other states. These businesses demand expanded rights to discriminate in the name of religion – not just for their owners but for their corporate entities, too. If granted, these religious exemptions from laws that protect others could excuse harmful action against others in ways repeatedly rejected by courts in the past, including refusals to employ, house or do business with LGBT people, those living with HIV, and anyone else deemed a sinner in the merchant’s eyes.

The companies press various problematic legal arguments before the High Court. First, they assert that for-profit corporations can be seen to worship and otherwise to practice religion when selling goods or services to the public. Another claim is that it’s an improper burden on the business owners’ exercise of religion if their female employees have insured medical options to which they object. This second argument foreshadows SB 1062’s recent claim that it improperly burdens merchants’ freedom of worship to have to serve the public without discriminating when they open their doors and solicit customers.

Recognizing the stakes the Supreme Court’s rulings may have for LGBT people, Lambda Legal, joined by GLMA (Health Professionals Advancing LGBT Equality) and Pride at Work (AFL-CIO), filed a friend-of-the-court brief in these cases. We explained that accepting the business owners’ religious claims would up-end sensible doctrine developed over generations based on our Constitution and laws. 

The fact is, the owners’ requested approach has been rejected repeatedly in the past precisely because it would transform our equal opportunity public marketplace into segregated dominions within which each business owner with religious convictions becomes a law unto him- or herself.It has not been – and must not be – deemed a wrongful burden on anyone’s freedom to believe and worship freely to know that others live according to different personal and religious creeds, but that we all must coexist and interact with each other fairly in commerce. Put as the issue arises in these ACA cases, it is not an improper restriction on the owners or managers of a business to be kept from imposing their religious beliefs on their employees, especially not in ways that intrude upon and pressure their employees’home lives.

But, Hobby Lobby and Conestoga assert that inclusion of birth control in their health plan forces them to endorse its use. This is a stretch. An employer’s payment of insurance premiums to a third party insurer or health plan simply isn’t approval of any of the medical care decisions subsequently made by employees in consultation with their physicians – not decisions to use birth control, have an epidural, or opt for a caesarean section; nor to take Viagra, have a vasectomy, take HIV medication oruse blood thinner.

Hobby Lobby’s owners might reply, “We don’t object to our female employees’ choosing birth control. We just object to paying for it through the health plan.” But it’s barely a step from trying to line-item veto medicaloptions from employer-provided health insurance to forbidding use of an employer-provided paycheck to buy liquor, pork, dance music or coffee. Or incense for a pagan religious service.Or a gift for a gay friend’s wedding. 

This takes us to the issue in Arizona, Kansas and Mississippi, and to the potential ballot fight in Oregon this fall. And here again, merchants are seeking far too much involvement in others’ lives. Selling a wedding cake to a gay male couple “endorses” their nuptials no more than selling a pie endorses a customer’s choice of family members or dinner guests. Selling a wedding dress to a lesbian bride endorses her choice of fiancée no more than selling a suit endorses the wearer’s choice of business partners or plans. Every business owner may personally forego particular food, clothing, lines of work, medical options or groups of friends. But, those free choices must not be forced on others who are entitled to their own beliefs and commitments notwithstanding the owner’s power to coerce.

LGBT people already face an outsize share of religion-based discrimination. We already see religious refusals of employee benefits for a same-sex spouse or partner, of health care for transgender individuals, and of services for people living with HIV.These problems would snowball if the Supreme Court were to decide that for-profit companies can burden employees’ decisions about fertility and childbearing. The religious critiques of contraception made in these cases could as easily be leveled at sterilization, infertility care, or same-sex parenting. Wouldn’t decisions about the sex, race or religion of one’s spouse be next? 

Despite the dramatic blowback against Arizona’s SB 1062, if Hobby Lobby and Conestoga win, the Supreme Court likely will have reinterpreted longstanding federal law to adopt for the whole country a key goal of Arizona’s bill, empowering businesses to discriminate against their customers and employees based on religion, whether or not that discrimination otherwise would be illegal. What would be next? If an arts and crafts chain could deny female employees birth control coverage, could car dealerships deny female employees all insurance coverage? Could restaurants deny service to interracial couples? Could grocery stores turn away unmarried mothers? Could bakeries slam the door on same-sex couples?

We had that society in the past. Signs in the South said “Whites Only,” and in the North, “No Irish Need Apply.” In fact, most corners of the country have shameful tales to tell. But eventually, the country faced the corrosive damage of discrimination and required equality. Yet, now, these lessons seem to have faded for many. And so the Supreme Court will ponder whether to hold the course or to invite even wider misuse of religious liberty claims to refuse services, inclusion and dignity to anyone vulnerable to others’ religious judgments. The founders of this country prized freedom of belief and worship precisely because their views and practices diverged from the dominant culture. They recognized that protecting each person’s freedom OF religion requires protection FROM others’ religions. The building of a kitchen cabinet may be a spiritual practice for some. But corporate bosses may not insist that it be so. Nor can they offer the finished furniture into the stream of commerce for a price, but floated with restrictive covenants.

Lambda Legal is grateful to the Anita May Rosenstein Foundation for partially funding the work of the Law and Policy Project.