Why Religious Exemptions to the Affordable Care Act Are an LGBT Issue

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January 30, 2014

Selling Kitchen Cabinets or Glue Guns for Profit Is Not Prayer

Some people think repetition makes an argument more convincing.

The House of Representatives passed 46 bills to repeal the Patient Protection and Affordable Care Act (ACA). None got traction in the Senate.

Ninety lawsuits have been filed challenging the ACA’s rule that large-employer health plans must include basic wellness care which, for women, includes contraception. Forty-three of these suits have been filed by for-profit businesses owned by individuals with religious objections to contraception. (Note: The ACA does not require anyone to use contraception.)

It remains to be seen whether the repetitiveness of these cases makes any of them more persuasive.

At present, the federal courts are divided, and the U.S. Supreme Court has agreed to hear two cases in which the intermediate courts of appealhave disagreed. The issue is whether large, for-profit businesses have the same protected rights to practice religion as human beings and nonprofit organizations formed for religious purposes, such as churches, parochial schools and religiously affiliated soup kitchens.

Learn more about the ACA and religious exemptions at the Supreme Court.

In Conestoga Wood v. Sebelius, the Third Circuit Court of Appeals rejected the claim that selling kitchen cabinets is a religious practice. The court also concluded that owners of a for-profit corporation have no right to pick and choose based on their own religious views which basic services their workers can access through their health plan.

The Tenth Circuit Court of Appeals came to a different conclusion, deciding that Hobby Lobby, a national chain of more than 50 arts-and-crafts stores with more than 13,000 employees, does have the right to exercise religion and can demand a religious exemption from laws regulating the business to protect employees and the general public.

Recognizing the stakes the Supreme Court’s ruling in these cases has for LGBT people, Lambda Legal, joined byGLMA(Health Professionals Advancing LGBT Equality) and Pride at Work (AFL-CIO), filed a friend-of-the-court briefshowing that people engaged in business have sought similar religious exemptions from rules prohibiting race, sex, marital status and disability discrimination. Courts consistently have rejected those requests, and rightly so.Otherwise, as a practical matter, civil rights laws would accomplish little.

With a shared commitment to eliminating health disparities and employment discrimination based on sexual orientation, gender identity and HIV status, Lambda Legal and our partners see the religious exemptions that Hobby Lobby and Conestoga Wood seek as threatening not just access to birth control, which — let’s admit —isn’t always an LGBT priority. Rather, these companies are singing that too-familiar atonal song asking for a right to ignore health, safety and nondiscrimination rules that protect everyone.

In our multicultural society, respect for religious pluralism is essential. But respect for religious beliefs must never become a license to impose one’s views on others in business and professional transactions.

LGBT people already face an outsize share of religion-based discrimination. We know too well how these problems would grow if the Supreme Court were to agree that owners of for-profit companies can interfere with employees’ home lives and decisions about fertility, birth control, childbearing, and the sex, race or religion of one’s spouse.

Hobby Lobby and Conestoga offered no limiting principle and, indeed, there is none. Religious critiques of contraception can as easily be leveled at sterilization, infertility care and same-sex parenting. How do employee privacy and freedom survive an employer’s line-item veto of insurance coverage designed to push and steer personal decision-making by shifting costs from health plan to worker?

Stepping back from the reproductive health context of these cases, imagine how America’s workplace standards would be changed if the Supreme Court embraces the companies’ approach.

Business owners with religious objections to blood transfusion could exempt that life-saving service from their employees’ insurance. They could selectively exclude coverage for “sinful” medications that control pain, alleviate depression, manage HIV or support gender transition. Those who believe that all modern medical treatments interfere with divine will could refuse coverage for all but faith healing.

We’ve sounded alarms about access to birth control in part because discriminatory limitations on health insurance and biased attitudes of health professionals — often rooted in antigay religious views — already contribute to persistent health disparities affecting LGBT people and people living with HIV.

Our brief presented health research findings showing not just that these disparities exist, but that social stigma plays a significant role by undermining both mental and physical health. The last thing we need is more religion-based discrimination against workers, patients and others in business and professional settings.

These ACA cases concern access to medical care, but this attempt to elevate religious interests above the needs of others is not necessarily confined to employer-provided health insurance or medical services. The notion that a commercial business sins when it complies with rules that permit the “sinful” independent conduct of other people could apply just as well to the non-benefits portion of employee compensation — wages. That is, logically, if payment of corporate monies into a health plan creates sinful “facilitation” of independent medical choices of which the business owners are not even aware and in which they have no involvement, then doesn’t payment of wages facilitate employees’ independent purchases of “sinful” goods —whether condoms or pork, liquor or pornography? To prevent such “facilitation” of employees’ sins, could business owners really attach religious strings to their workers’ paychecks?

Decades of case law say no.Rights of religious exercise must find their limit when they begin to trample the rights of others.This is the only tenable answer in our religiously pluralistic, secular society.

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