Beginning Tuesday, the U.S. Supreme Court will hear oral arguments in two cases that could have a profound impact on the rights of religious individuals and groups to refuse to abide by laws that generally apply to everyone. While these two cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corporation v. Sebelius, are themselves about whether religiously minded private business owners must abide by a federal requirement that they cover birth control in their employee health plans, what the Court decides could have much broader ramifications, including for the LGBT community.
It is no secret that many of those who wish to treat LGBT people differently do so based on their religious beliefs. In recent years, we have seen more and more private individuals and businesses invoking religion to justify denying employment, goods, and services to LGBT people or same-sex couples. This year, a flurry of legislative proposals in dozens of states—most visibly Kansas and Arizona—demonstrate that efforts to “protect” religion from the advancement of LGBT equality are not going away any time soon. Whatever the Supreme Court decides this summer in Hobby Lobby and Conestoga Wood will affect how successful those efforts may be, and it is critical that LGBT people and their allies pay attention.
The cases themselves are about a requirement under the Affordable Care Act that companies provide health coverage for preventive care and services, including coverage for birth control. The owners of Hobby Lobby, a national craft store chain, and Conestoga Wood Specialties Corporation, a manufacturer of cabinet doors and components, contend that this mandate requires them to do something that conflicts with the religious manner in which they want to run their businesses. They argue that the law violates both the Religious Freedom Restoration Act, a federal law that bars the federal government from “substantially burdening” someone’s religious freedom without a compelling reason, and the First Amendment’s guarantee of the free exercise of religion. The appeals courts below came to conflicting conclusions: In Hobby Lobby, the court concluded that the company has religious rights that were unacceptably burdened by the Obamacare requirement, whereas in Conestoga Wood, the court decided that the company did not have the same kinds of religious rights as individuals or churches.
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If Hobby Lobby prevails at the Supreme Court, it will undoubtedly take years to assess the full ramifications. The most immediate impact will be that many types of birth control will go back to being unaffordable or financially burdensome for employees of corporations asserting religious objections. It is easy to forget that many in the LGBT community have a real need for access to birth control, particularly lesbians, bisexual women, and transgender men. Without coverage as part of their insurance plan, many in these groups will not be able to easily address a range of health problems, such as abnormal menstrual cycles, polycystic ovary syndrome, or even rare blood diseases. In addition, members of our community want to access birth control for family planning purposes. Bisexual people comprise a slight majority of the LGB community and most bisexual people want to utilize birth control at some point—even those who will choose to have children with an opposite-sex partner.
But the short-term implications go much further. If corporations are people with a right to refuse to comply with health-care mandates based on religious beliefs, it stands to reason that they would not only be permitted to refuse birth control coverage but other types of coverage as well. Already, some individuals use religion to demonize LGBT people and publicly object to any service that “promotes homosexuality” or acknowledges transgender people. In this environment, it would not be surprising to find corporations controlled by religious owners refusing to provide coverage for HIV medications, hormone replacement therapy drugs vital to transgender people, and fertility drugs utilized by lesbian women in family creation.
The broader effect of a Hobby Lobby win is to allow the regulation of private sexual conduct by imposing one segment of the population’s moral views upon everyone. Of particular concern will be the ability of states and cities to enforce their non-discrimination laws that protect LGBT individuals in employment, housing, and public accommodations. Sixteen states plus the District of Columbia prohibit discrimination on the basis of sexual orientation and gender identity in all three areas of law. More than 100 cities around the country also provide protections—from Missoula to Phoenix, Detroit to Fort Lauderdale. Religiously controlled corporations are already seeking carve outs thought the courts. Restaurants and hotels have expressed a wish to turn away same-sex couples. Celebrating an anniversary, adoption, or pregnancy could turn into a fraught experience as LGBT people in states like Minnesota that have had protections for over 20 years might now have to navigate discrimination in the public sphere. If ruled upon and interpreted broadly, Hobby Lobby could lead to LGBT people experiencing renewed discrimination in bakeries, adoption agencies, and pharmacies.
With Hobby Lobby, there is clearly a lot at stake for the vast majority of Americans who believe that our laws already strike the right balance between religious liberty and important principles of non-discrimination.