Commentary Human Rights

How the ‘Hobby Lobby’ Ruling Could Be Used Against Gay or Transgender People

Katherine Cross

Amid the anguish over the Hobby Lobby ruling Monday was a note of optimism among some liberals, suggesting that the ruling was constructed with a narrowness that specifically prohibits use of its legal reasoning to protect religiously inspired discrimination against LGBT people. If only that was in fact the case.

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

Amid the anguish that met the Hobby Lobby ruling by the Supreme Court on Monday was a surprising lone note of optimism from some quarters of liberalism. Some people, like Slate’s Mark Joseph Stern, suggested that in spite of the ruling’s damage to the cause of women’s health care, it was constructed with a narrowness that specifically prohibits use of its legal reasoning to protect religiously inspired discrimination against LGBT people.

The search for silver lining in darkness is one that I, as an almost maddeningly optimistic woman, can certainly appreciate. But it is profoundly misguided here. The view that the decision in Hobby Lobby precludes the use of “religious liberty” against any part of the LGBT spectrum relies almost exclusively on trusting the hand-waving of both Justice Alito and Justice Kennedy, whose “cabining” of their ruling relies primarily on a wing and a prayer.

As has been discussed at length elsewhere, starting with Justice Ginsburg’s own powerful dissent against the Court majority, the proclamation of narrowness on the part of Justice Alito is simply that: a proclamation. There is little in the ruling to suggest that it is not as broad as it appears to be; though it kept its focus to one part of the Affordable Care Act and addressed itself only to the specific claims of the plaintiffs, the reasoning the justices used to rule in their favor has no reasonable limits. At bottom, the ruling turns on the question of what the Religious Freedom Restoration Act (RFRA) of 1993 meant when it said “person.”

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In short, as many of us now understand, this required the justices to once more adjudicate on whether corporations are “people” under the law. Whatever the answer, it would be broad by sheer necessity.

Beyond that, the Court majority believes that the RFRA “provided even broader protection for religious liberty than was available under [previous Court] decisions,” in the words of a footnote in the decision written by Alito. This is the faultline of the Court’s split. Justice Ginsburg witheringly disagrees with the idea that the RFRA was some kind of Big Bang siring a new universe of religious liberty that obviated all previous precedent, and accuses the majority of imputing nonexistent intentions to the near unanimous Congress that passed the bill.

It is important to note that this expansive conception of RFRA decided the case and carried the day because it is that national-level law that has served as a template for considerably more restrictive, deliberately anti-LGBT state-level laws that are being mooted nationwide. In that light, the Court endorsing a vision of the RFRA as a Year Zero in religious liberty jurisprudence should alarm us all.

Mark Joseph Stern suggests otherwise, arguing that it was precisely Justice Ginsburg’s dissent and its mention of queer people subject to religiously inspired discrimination that forced the Court majority to address the question and cabin its ruling.

He cites Justice Alito’s ruling, which says in part:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield.

Alito goes on to say that the government “has a compelling interest in providing an equal opportunity to participate in the workforce” and that laws prohibiting racial discrimination “achieve that critical goal.”

Stern then characterizes Kennedy’s concurrence as “[going] even further” because he states that the free exercise of religion can’t “unduly restrict … employees in protecting their own interests.”

There are two noteworthy flaws in this reasoning.

First, LGBT people are not mentioned in either statement at all. There is no indication that either Alito or Kennedy sees LGBT people (inclusive of trans people) as occupying a position equivalent to people making claims of racial discrimination. Although Kennedy did rule in favor of same-sex couples in United States v. Windsor, it is critical to note that this case struck down a government regulation rather than affirming one. Kennedy has a history of viewing government intervention and regulation quite skeptically. I’ll return to this point later.

Second, as already established, the Court did not “cabin” their ruling as claimed. The RFRA, as the majority read it, grants wider latitude to religious “persons” (now including “closely held” corporations) than previous case law. The brake lines were also cut in their consideration of corporate “personhood.” Not only do “closely held” corporations (defined broadly by the IRS as any company that has more than 50 percent of its stock held by five or fewer individuals) make up as many as 90 percent of registered corporations in the United States, but there is nothing in the reasoning that would thwart claims made by publicly traded corporations.

Frankly, it is a pattern in the ruling to all but say, “It’s limited to X because I say so.” No legal logic helps to anchor the ruling in place.

This appears throughout the arguments made by Alito and Kennedy. What, then, prevents future anti-LGBT use of the ruling? Nothing, realistically speaking. Stern is correct that this ruling is not the “apocalypse” some of us feared, but the Roberts Court favors slow burns over fire and brimstone. Today’s “narrow” rulings become tomorrow’s precedents for something much larger, a pattern followed in Shelby County v. Holder (drawing on a purportedly “narrow” ruling in 2009’s Northwest Austin Municipal Utility District Number One v. Holder), which radically struck down Section 4 of the Voting Rights Act.

So, what could be next?

It is important to remember that while the term “LGBT” has become mainstream, most people intuitively mean cisgender gay, lesbian, and sometimes bisexual people when they invoke the term. Transgender people, oft forgotten, are on a different political track than their cisgender queer friends and pursue different policy issues accordingly, meeting with resistance very specific to our experiences.

Historically, trans activism has fought for everything from rights for sex workers, to health-care access, to fighting for legislation that meets our specific needs for equal access to the commons. For the latter, this has meant public accommodation laws that recognize sex-segregated facilities, like bathrooms or changing rooms, as particular sites of discrimination against trans people. It has taken a long time, but we have increasingly begun to win the argument that trans equality requires—among other things—the ability to access facilities congruent with one’s lived gender. This helps mitigate the risk of, say, forcing trans women to use men’s restrooms (which, in addition to being a safety issue, also violates trans women’s right to privacy by outing us to any onlooker).

As one would expect, these nascent rights have been met with a barrage of attacks from the religious right. Conservatives, smarting from their rout in the same-sex marriage debate, are now turning their gaze to trans people, employing the same tactics against us. We are coming to replace the cis gay man or lesbian woman as the cardinal bogeyman of the fundamentalist right.

In California and Maryland, there were attempts to gin up support for ballot referenda that would put those states’ recently enacted transgender rights bills to a public vote. California’s bill, in particular, was aimed at protecting the rights of transgender students, in part by ensuring that they have access to facilities congruent with their genders. Thus began a new wave of “bathroom panic,” which violently exercises the imaginations of conservatives (and some extremist feminists) to the breaking point.

The idea that transphobia is divinely ordained and supported in scripture is not new, but has risen to new prominence and urgency as the same-sex marriage issue fails to excite the conservative base as it once did.

At issue for some on the right is the fact that trans accommodations could be viewed as making impositions on business owners that force them to violate their “sincerely held” religious beliefs.

Is this beginning to sound familiar?

According to the Hobby Lobby ruling, there is nothing to suggest that the Court would treat religious objections to trans accommodation any differently from the way they treated contraception (which, it is worth noting, enjoys a significantly higher approval rating than trans people do).

The Court’s test for evaluating which religious objections pass muster for them is fundamentally arbitrary. The syllabus of the ruling says, “This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.” But it does not say why; it is merely a hand wave.

What emerges is that there are no real guidelines on how to evaluate religious conflicts with law. This is a point that Alito addresses directly, but only to say that it is not the Court’s job to do so. Fair enough—but it continues to put the lie to the idea that the ruling is in any way “narrow,” or that we can reasonably predict what this ruling will and won’t be used to support. In spite of its protests to the contrary, the ruling has dramatically revised the meaning of religious liberty.

With this in mind, there is no way to guarantee that this ruling will not be used against, say, transgender people in the not too distant future. There is nothing to suggest that Hobby Lobby’s terms obviate claims made by an employer that allowing a trans woman to use the women’s restroom, for instance, is a violation of their religious beliefs. There is nothing to suggest that while the Court may uphold a law protecting trans people’s right to equal employment, they wouldn’t also strike down accommodation laws. Justice Kennedy, who often decides cases, has a history that suggests he might look askance at such laws and regard them as fundamentally different in character from older laws that ensure equal racial accommodation.

The other truly scary aspect of this ruling, and why it is such a threat to LGBT people and trans people in particular, is that it made abundantly clear that the factual veracity of a religious claim has no bearing whatsoever on the Court’s judgement. Justice Alito, in arguing directly with Justice Ginsburg’s dissent, claims that both the Department of Health and Human Services and Justice Ginsburg are “arrogating authority” to “tell the plaintiffs that their beliefs are flawed” and condemns this as an overreach. The scientific fact that intrauterine devices (IUDs) and Plan B aren’t abortifacients is irrelevant, so far as Alito and the rest of the majority are concerned.

It is noteworthy, then, that religious beliefs claiming transgender people are inherently unnatural, delusional, or sinful are based on scientifically falsifiable claims—most biological essentialism is. But religious people who believe that gender is pre-ordained in the womb, that “God made you to be a man/woman,” or that being trans must be a mental illness, won’t, in the Court’s judgement, have such beliefs evaluated on their merits, even when considering the harm they may perpetrate on third parties.

So as much as I would like to share Mark Joseph Stern’s optimism, this ruling is not “good for gays,” and it’s certainly not good for trans people.

Commentary Contraception

For Students at Religious Universities, Contraception Coverage Isn’t an Academic Debate

Alison Tanner

When the U.S. Supreme Court sent a case about faith-based objections to the Affordable Care Act's contraceptive mandate back to lower courts, it left students at religious colleges and universities with continuing uncertainty about getting essential health care. And that's not what religious freedom is about.

Read more of our articles on challenges to the Affordable Care Act’s birth control benefit here.

Students choose which university to attend for a variety of reasons: the programs offered, the proximity of campus to home, the institution’s reputation, the financial assistance available, and so on. But young people may need to ask whether their school is likely to discriminate in the provision of health insurance, including contraceptive coverage.

In Zubik v. Burwell, a group of cases sent back to the lower courts by the U.S. Supreme Court in May, a handful of religiously affiliated universities sought the right to deny their students, faculty, and staff access to health insurance coverage for contraception.

This isn’t just a legal debate for me. It’s personal. The private university where I attend law school, Georgetown University in Washington, D.C., currently complies with provisions in the Affordable Care Act that make it possible for a third-party insurer to provide contraceptive access to those who want it. But some hope that these legal challenges to the ACA’s birth control rule will reverse that.

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Georgetown University Law Center refused to provide insurance coverage for contraception before the accommodation was created in 2012. Without a real decision by the Supreme Court, my access to contraception insurance will continue to be at risk while I’m in school.

I’m not alone. Approximately 1.9 million students attend religiously affiliated universities in the United States, according to the Council for Christian Colleges and Universities. We students chose to attend these institutions for lots of reasons, many of which having nothing to do with religion. I decided to attend Georgetown University Law Center because I felt it was the right school for me to pursue my academic and professional goals, it’s in a great city, it has an excellent faculty, and it has a vibrant public-interest law community.

Like many of my fellow students, I am not Catholic and do not share my university’s views on contraception and abortion. Although I was aware of Georgetown’s history of denying students’ essential health-care benefits, I did not think I should have to sacrifice the opportunity to attend an elite law school because I am a woman of reproductive age.

That’s why, as a former law clerk for Americans United for Separation of Church and State, I helped to organize a brief before the high court on behalf of 240 students, faculty, and staff at religiously affiliated universities including Fordham, Georgetown, Loyola Marymount, and the University of Notre Dame.

Our brief defended the sensible accommodation crafted by the Obama administration. That compromise relieves religiously affiliated nonprofit organizations of any obligation to pay for or otherwise provide contraception coverage; in fact, they don’t have to pay a dime for it. Once the university informs the government that it does not want to pay for birth control, a third-party insurer steps in and provides coverage to the students, faculty, and staff who want it.

Remarkably, officials at the religious colleges still challenging the Affordable Care Act say this deal is not good enough. They’re arguing that the mere act of informing the government that they do not want to do something makes them “complicit” in the private decisions of others.

Such an argument stands religious freedom on its head in an attempt to impose one group’s theological beliefs on others by vetoing the third-party insurance providers’ distribution of essential health coverage to students, faculty, and staff.

This should not be viewed as some academic debate confined to legal textbooks and court chambers. It affects real people—most of them women. Studies by the Guttmacher Institute and other groups that study human sexuality have shown that use of artificial forms of birth control is nearly universal among sexually active women of childbearing years. That includes Catholic women, who use birth control at the same rate as non-Catholics.

Indeed, contraception is essential health care, especially for students. An overwhelming number of young people’s pregnancies are unplanned, and having children while in college or a graduate program typically delays graduation, increases the likelihood that the parent will drop out, and may affect their future professional paths.

Additionally, many menstrual disorders make it difficult to focus in class; contraception alleviates the symptoms of a variety of illnesses, and it can help women actually preserve their long-term fertility. For example, one of the students who signed our brief told the Court that, “Without birth control, I experience menstrual cycles that make it hard to function in everyday life and do things like attend class.” Another woman who signed the brief told the Court, “I have a history of ovarian cysts and twice have required surgery, at ages 8 and 14. After my second surgery, the doctor informed me that I should take contraceptives, because if it happened again, I might be infertile.”

For these and many other reasons, women want and need convenient access to safe, affordable contraceptives. It is time for religiously affiliated institutions—and the Supreme Court—to acknowledge this reality.

Because we still don’t have an ultimate decision from the Supreme Court, incoming students cannot consider ease of access to contraception in deciding where to attend college, and they may risk committing to attend an university that will be legally allowed to discriminate against them. A religiously affiliated university may be in all other regards a perfect fit for a young woman. It’s unfair that she should face have to risk access to essential health care to pursue academic opportunity.

Religious liberty is an important right—and that’s why it should not be misinterpreted. Historically, religious freedom has been defined as the right to make decisions for yourself, not others. Religious freedom gives you have the right to determine where, how, and if you will engage in religious activities.

It does not, nor should it ever, give one person or institution the power to meddle in the personal medical decisions of others.

Analysis Politics

Donald Trump and Mike Pence: The Anti-Immigrant Ticket

Tina Vasquez

“My greatest fear is that this ticket doesn’t seem to realize immigrants are actually an incredible resource that fuels our country," Wendy Feliz of the American Immigration Council told Rewire.

On Friday, Republican presidential candidate Donald Trump announced Indiana Gov. Mike Pence as his running mate, giving legitimacy to concerns a Trump presidency would be anti-choice and decimate LGBTQ rights. As Rewire reported last week, Pence has voted against nondiscrimination efforts, signed a so-called religious freedom bill, opposed marriage equality, and attemptednumerous times—to defund Planned Parenthood, something Trump has promised to do if elected president.

But the two Republicans also have something else in common: They are brazenly anti-immigrant.

Despite a misleading article from the Daily Beast asserting that Pence has had a “love affair with immigration reform” and has “spent his political career decrying anti-immigrant rhetoric,” the governor’s record on immigration tells a different story.

Let’s take a look at Trump’s “xenophobic” and “racist” campaign thus far, and how closely Pence’s voting aligns with that position.

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Donald Trump

For months it seemed, Donald Trump’s talking points in the media rarely drifted away from anti-immigrant rhetoric. During his kickoff speech, he referred to Mexican immigrants as “rapists” and “killers” and in the months since, has promised to build a 2,000-mile-long wall along the United States-Mexico border to keep “illegals” out, a wall the billionaire has promised that Mexico will pay for.

Despite being called “racist” by members of his own party, Trump’s immigration plan is largely consistent with what many Republicans have called for: a larger border wall, increasing the number of Immigration and Customs Enforcement (ICE) officers, requiring all U.S. companies to use E-Verify to check the immigration status of employees, increasing the use of detention for those who are undocumented and currently residing in the United States, and ending “birthright citizenship,” which would mean the U.S.-born children of undocumented parents would be denied citizenship.

Again, Trump’s proposed immigration policies align with the Republican Party’s, but it is the way that he routinely spreads false, damaging information about undocumented immigrants that is worrisome. Trump has repeatedly said that economically, undocumented immigrants are “killing us by “taking our jobs, taking our manufacturing jobs, taking our money.” 

Market Watch, a publication focusing on financial news, reported that this falsehood is something that a bulk of Trump supporters believe; two-thirds of Trump supporters surveyed in the primaries said they feel immigration is a burden on our country “because ‘they take our jobs, housing and health care.'” This, despite research that says deporting the 11 million undocumented immigrants who currently call the United States home would result in a “massive economic hit” for Trump’s home state of New York, which receives $793 million in tax revenue from undocumented immigrants. A recent report by the Institute on Taxation and Economic Policy also found that at the state and local level, undocumented immigrants nationwide collectively pay an estimated $11.6 billion each year in taxes.

Trump has also been accused by Muslim Americans and members of the media of engaging in “reckless, dangerous Islamophobia” at every opportunity, using terrorist attacks to call for a ban on all Muslim immigration, while also using terrorism in a self-aggrandizing manner. In a statement released after the Pulse nightclub shooting, Trump said, “I said this was going to happen.”

These dangerous assertions that all U.S.-based Muslims are secretly harboring terrorists or that undocumented immigrants are killing “thousands of peoplea narrative he continued to push at the Republican National Convention by having the families of three Americans killed by undocumented people speak—can be deadly and inspire hatred and violence. This was made all the more clearer when in August 2015 two white brothers cited Trump when they urinated on and beat a homeless Latino man. According to Huffington Post, the men “alegedly [sic] told police they targeted the man because of his ethnicity and added, ‘Donald Trump was right, all these illegals need to be deported.’” Trump’s response? He said that his supporters are simply “passionate” people who want America “to be great again.”

Mike Pence

Wendy Feliz, a spokesperson with the American Immigration Council, succinctly summarized Pence’s immigration approach to Rewire, saying on Monday that he “basically falls into a camp of being more restrictive on immigration, someone who looks for more punitive ways to punish immigrants, rather than looking for the positive ways our country can benefit from immigrants.”

After Trump’s announcement that Pence would be his running mate, Immigration Impact, a project of the American Immigration Council, outlined what voters should know about Pence’s immigration record:

Pence’s record shows he used his time in Congress and as the Governor of Indiana to pursue extreme and punitive immigration policies earning him a 100 percent approval rating by the anti-immigration group, Federation for American Immigration Reform.

In 2004 when Pence was a senator, he voted for the “Undocumented Alien Emergency Medical Assistance Amendments.” The bill failed, but it would have required hospitals to gather and report information on undocumented patients before hospitals could be reimbursed for treating them. Even worse, the bill wouldn’t have required hospitals to provide care to undocumented patients if they could be deported to their country of origin without a “significant chance” of their condition getting worse.

Though it’s true that in 2006 Pence championed comprehensive immigration reform, as the Daily Beast reported, the reform came with two caveats: a tightening of border security and undocumented immigrants would have to “self-deport” and come back as guest workers. While calling for undocumented immigrants to self-deport may seem like the more egregious demand, it’s important to contextualize Pence’s call for an increase in border security.

This tactic of calling for more Border Patrol agents is commonly used by politicians to pacify those opposed to any form of immigration reform. President Obama, who has utilized more border security than any other president, announced deferred action for the undocumented in June 2012, while also promising to increase border security. But in 2006 when Pence was calling for an increase in border security, the border enforcement policy known as “Operation Gatekeeper” was still in full swing. According to the American Civil Liberties Union (ACLU), Operation Gatekeeper “concentrated border agents and resources along populated areas, intentionally forcing undocumented immigrants to extreme environments and natural barriers that the government anticipated would increase the likelihood of injury and death.” Pence called for more of this, although the undocumented population expanded significantly even when border enforcement resources escalated. The long-term results, the ACLU reported, were that migrants’ reliance on smugglers to transport them increased and migrant deaths multiplied.

There are more direct ways Pence has illustrated a xenophobic agenda, including co-sponsoring a congressional bill that would have made English the official language of the United States and as governor, blocking Syrian refugees en route to Indiana, saying he would not accept any more Syrian refugees out of fear they were “terrorists.” The governor also added Indiana to the Texas lawsuit challenging expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). And he praised the inaction by the Supreme Court last month to expand DACA and DAPA, which leaves millions of undocumented immigrants living in fear of deportation.

According to the Office of Refugee Resettlement, “when a child who is not accompanied by a parent or legal guardian is apprehended by immigration authorities, the child is transferred to the care and custody of the Office of Refugee Resettlement (ORR). Federal law requires that ORR feed, shelter, and provide medical care for unaccompanied children until it is able to release them to safe settings with sponsors (usually family members), while they await immigration proceedings.”

The ORR added that these sponsors “live in many states,” including Indiana, which received 245 unaccompanied minors between January and July 2014. Pence was reportedly unaware that unaccompanied minors were being placed in his state by the federal government, something he said he was made aware of by media reports. These are asylum seeking children, often girls under the age of 10, escaping violence in their countries of origin who arrive at the United States-Mexico border without an adult. Many, including advocacy organizations and the Obama administration, have contended that the circumstances surrounding unaccompanied minors is not simply an immigration issue, but a humanitarian crisis. Not Pence. In a letter to President Obama, the Indiana governor wrote:

While we feel deep compassion for these children, our country must secure its borders and provide for a legal and orderly immigration process …. Failure to expedite the return of unaccompanied children thwarts the rule of law and will only continue to send a distorted message that illegally crossing into America is without consequence.

In the four days since Pence was named Trump’s running mate, he’s also taken a much harsher stance on Muslim immigration. Back in December when Trump called for a “total and complete shutdown of Muslims entering the United States,” Pence tweeted that banning Muslims from entering the United States was “offensive and unconstitutional.” However, on Friday when Pence was officially named Trump’s VP pick, he told Fox News’ Sean Hannity, “I am very supportive of Donald Trump’s call to temporarily suspend immigration from countries where terrorist influence and impact represents a threat to the United States.”

Wendy Feliz of the American Immigration Council told Rewire that while Pence’s rhetoric may not be as inflammatory as Trump’s, it’s important to look at his record in relation to Trump’s to get a better understanding of what the Republican ticket intends to focus on moving into a possible presidency. Immigration, she said, is one of the most pressing issues of our time and has become a primary focus of the election.

“In a few days, we’ll have a better sense of the particular policies the Republican ticket will be pursuing on immigration. It all appears to point to more of the same, which is punitive, the punishing of immigrants,” Feliz said. “My greatest fear is that this ticket doesn’t seem to realize immigrants are actually an incredible resource that fuels our country. I don’t think Trump and Pence is a ticket that values that. An administration that doesn’t value immigrants, that doesn’t value what’s fueled our country for the past several hundred years, hurts all of us. Not just immigrants themselves, but every single American.”