Momentum: Fighting Religious Refusals

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December 26, 2013

In the blog series Momentum: 2013, A Year of Equality we ask Lambda Legal’s experts to discuss the impact of the previous year and the continuing work necessary to keep equality moving forward.

2013 will stand as a breakthrough year for same-sex couples. Our decades of building culminated in the defeat of DOMA and at least 17 states and our Nation’s capital allowing same-sex couples to marry. In at least four of those states, we worked closely with state advocates this year both to craft marriage legislation and to prevent those bills from giving broad, new permission to discriminate in the public marketplace using religion. “Religious refusals” of goods or services are, sadly, not a new problem for LGBT people and those living with HIV. But some who see LGBT progress as a threat are more determined than ever to make the religious liberty intended as a shield for worship and belief into a sword against others.

But repeatedly this year, we prevented them from gaining traction. In Delaware and Minnesota, where prior law already exempted religious organizations from most human rights rules, state leaders resisted pressure to create similar exemptions for those in for-profit business. The Hawaii Legislature likewise held the line against broad religious exemptions for individuals engaged in commerce, despite five long days of live testimony, much of which voiced religious doctrine. And in Illinois, where large religious institutions exerted heavy pressure all year, lawmakers stood firm against demands that businesses should get freedom to discriminate as the price of gay people’s freedom to marry. In fact, frustrated far-right religious advocates proclaimed Illinois’ marriage equality law the worst in the country.

In this legislative work, we draw on our experience fighting religious objections in court. And as non-discrimination protections are enacted in more places, we are seeing more need to defend these hard-won protections against attacks based on personal religious beliefs of business owners. Two of our current cases illustrate the challenges and urgency of this work. In Hawaii we are representing a lesbian couple who were denied lodging at a bed and breakfast because of the owner’s religious objection to housing lesbians. The trial court agreed with us that this refusal clearly violated the state’s nondiscrimination laws. The proprietor has appealed. And in a new case we represent a same-sex couple standing up to the privately owned art gallery and event facility that refused to rent to them, disregarding the state’s public accommodations law, because of the owners’ religious objection.

These cases are important because none of us should have to fear being turned away from a commercial business – whether owner-occupied or multistate – because the proprietor sees others through a lens of religious judgment. We need to carry forward in all regions the momentum against religious exemptions built in Delaware, Minnesota, Illinois and Hawaii.

The U.S. Supreme Court recently agreed to address questions running through much of this work: Do secular, for-profit corporations have religious rights? Can individuals who own those corporations exercise their own religious rights through operation of their business? These questions are of such importance to Lambda Legal’s mission that we have submitted friend-of-the-court briefs in six related cases so far. One of these cases, Conestoga Wood Specialties Corp. v. Sebelius, will be heard by the Supreme Court this spring, together with a second case, Sebelius v. Hobby Lobby Stores, Inc., in which the lower court reached different results. We’re hard at work on our next brief now.

These cases are two of more than forty challenges by for-profit businesses to the Patient Protection and Affordable Care Act (“the ACA”)’s rule that employer-provided health plans must cover wellness care for women, including contraception. The owners of these large, family-owned businesses disapprove of contraception for religious reasons and object to their employees having insurance coverage for contraception through their health plans.

Granted, it’s not every day that women’s access to contraception is a Lambda Legal issue. But, we vigorously support the federal government’s position in these cases that those engaged in secular, commercial activity do not have religious rights to disregard rules that protect others and apply to everyone in that field. As long as the rules do not target religious people or groups, they must be followed to ensure the health, safety, and fair treatment of workers, customers, and others.

However the Supreme Court decides these cases is likely either to rein in or to fuel even wider use of religious liberty claims to refuse services, inclusion and dignity to LGBT people, those living with HIV, and anyone vulnerable to others’ religious judgments. Yet, many who see LGBT equality as a threat are convinced that “religious exemptions” remain their best weapon. Because they are committed to that course, we must continue and strengthen the momentum we have generated through our litigation, policy work and educational programs. Freedom of worship and belief are especially precious when traditions diverge and multiply. We protect freedom for everyone as we distinguish between sacred spaces and shopping malls, and among health insurance, life insurance and afterlife insurance.

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