Analysis Law and Policy

How the Supreme Court’s Ruling on Cakes for Same-Sex Weddings Could Trip Up Trump’s Attacks on Contraception

Joel Dodge

Based on what Justice Anthony Kennedy wrote in his Masterpiece Cakeshop opinion, the rules allowing religious exemptions to the birth control benefit are on thin ice.

Conservatives trumpeted the recent U.S. Supreme Court decision in favor of a baker who denied a gay couple’s request for a wedding cake as a victory for religious refusals. But the Court’s decision could actually make it harder for President Donald Trump’s administration to carry out its assault on access to contraception.

In the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, a baker asked the Court for the right to discriminate against a gay couple because of his religion, despite a law preventing discrimination based on sexual orientation. Though the Court ultimately ruled in the baker’s favor earlier this month, it refused to go that far. Instead, the Court ruled that the baker did not receive a fair hearing in this specific instance, based on statements by the Colorado Civil Rights Commission that supposedly suggested hostility toward religion.

At the same time, the Court reaffirmed its commitment to anti-discrimination principles and demonstrated that it will be very hard for other religious objectors to succeed in the baker’s footsteps.  As the American Civil Liberties Union attorney representing the defeated same-sex couple put it, “We lost a battle but won the war.”

As the Supreme Court deliberated over Masterpiece Cakeshop, the Trump administration was busy granting sweeping religious exemptions of its own—this time, to businesses and universities that oppose their employees’ and students’ use of birth control. In October, the Trump administration took aim at the guarantee in the Affordable Care Act (ACA) that health plans cover FDA-approved contraception by issuing rules that effectively allow any employer or university with a religious objection—and even some with moral objections—to drop contraception coverage for their employees or students.

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Those rules have been blocked by two federal courts and, based on what Justice Anthony Kennedy wrote in his Masterpiece Cakeshop opinion, the rules are on thin ice.

One key passage from Masterpiece notes that while clergy members might legally refuse to perform a same-sex marriage ceremony based on religious objections, “if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so … thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods [and] services.”

In other words, the Court believes that in the context of weddings, religious exemptions should be closely confined—available for clergy and very few others—or else these exemptions will quickly get out of hand. Until recently, the ACA’s contraception benefit followed similar principles. The rules offered full‑fledged exemptions to houses of worship, plus an accommodation that arranged for persons at certain religious entities to get contraception coverage directly from the insurer rather than through the religious entity.  But the Trump administration blew this careful scheme wide open, offering outright exemptions to virtually any employer—large or small, public or private, for-profit or nonprofit—or university, while leaving no options for contraception coverage.

The Supreme Court has long recognized that access to birth control is a key component of individuals’ constitutionally protected liberty to make their own decisions about their reproductive health. But those at entities that accept the Trump administration’s offer to drop birth control coverage will have little effective way to access coverage for contraception.  The United States still relies primarily on employer-provided insurance, and insurers do not sell individual contraception-only policies. And the Trump administration is doing its best to gut the family-planning safety net. In this environment, the administration’s religious exemptions for contraception may effectively cut off access to birth control for many.

The narrow ruling in Masterpiece Cakeshop tells us that such contraception regulations go too far in curtailing access to a constitutionally and legislatively protected right based on overbroad exemptions for religious and moral objectors. That’s particularly true given the Supreme Court’s concern about actions that harm people’s dignity: In the decision, the Court recognizes that restricting equal access to goods and services can inflict harmful stigma on a group of people. The contraception regulations do much the same, singling out preventive health care predominantly used by women for differential treatment, and shaming those who use birth control in the process. The administration even baselessly claims that birth control promotes sexual promiscuity.

All of which is to say that the Supreme Court’s same-sex wedding decision could derail the Trump administration’s efforts to undermine reproductive health care. When it comes to Masterpiece Cakeshop, there’s more than one way to slice the decision.

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