Five Judges Have Stopped All Further Progress on Gay Civil Rights Legislation



[The three women on the Court dissented]

In Burwell v. Hobby Lobby, decided by the United States Supreme Court a few months ago, the Court’s five conservative—and Republican—justices (over the vigorous dissent of the four liberals) decided that a corporation like Hobby Lobby (the stock of which is owned by a very religious family) is protected by the First Amendment’s freedom of religion clause and thus could use religious beliefs to object to funding family-planning coverage for its employees.  Corporations are now “people” too and religious corporations can go to church just like other U.S. citizens! This was a natural enough extension of the Court’s infamous decision in Citizens United v. FEC (2010), which declared that corporations were “persons,” thus entitling them to the full protection of the U.S. Constitution (with freedom of speech permitting them to spend as much money as they like: influencing elections, flooding us with billions of dollars to promote campaigns and drowning out the speech of ordinary individuals).  Whew!

The swing vote, of course, in both decisions was that of the most powerful judge in the world, Justice Anthony Kennedy (second from the right in the picture above), who sometimes votes with the liberals and sometimes with the conservatives, allowing him to decide all the important controversial cases.  He’s been terrific on gay issues while on the bench and authored last year’s groundbreaking Windsor decision which forbade the federal government from discriminating against gay people when it came to the recognition of their marriages.  That case said nothing about whether the states are required by the constitution to recognize the rights of gays to marry, an issue the Court will have to decide by the end of next June.  I’ve predicted in the past (and stand by the prediction) that the Court will come out in favor of gay marriages nationwide, a wonderful result and a big moment in gay history.  [See “Gays Will Be Able To Marry in All States By July of 2016 (and Maybe 2015),” February 14, 2014, http://douglaswhaley.blogspot.com/2014/02/gays-will-be-able-to-marry-in-all.html ]

It would doubtless surprise Justice Kennedy and, indeed, all of the four other conservative Justices who joined in the Hobby Lobby majority that one probably unintended result of the decision is that no more gay rights legislation protecting the LGBT community from discrimination in employment, housing, or public accommodations is ever likely to pass in the future.

As I’ve also noted before it’s perfectly legal in many states to discriminate against gays.  [See “Is It Legal To Discriminate Against Gay People?” March 17, 2014; http://douglaswhaley.blogspot.com/2014/03/is-it-legal-to-discriminate-against-gay.html ].  Recently in Pennsylvania, where it has recently become legal for gays to marry, lesbian couples have been turned away from a bakery that refused to make them a wedding cake and a bridal shop that refused to sell them gowns in both cases based on the owner’s religious beliefs that serving gays would cause the owners to be denied entry into heaven; see http://www.huffingtonpost.com/2014/08/14/pennsylvania-cake-pros-gay-wedding-_n_5678410.html   Those actions are perfectly legal because Pennsylvania has no state law granting civil rights protection to gays from such discrimination (some of the cities in the state have enacted such protection as municipal ordinances).

Ah, but you might ask, with the mood of the country now heavily favoring the rights of gays isn’t Pennsylvania and many other states likely to enact such protection?  No, they aren’t, as I’ll explain in a moment.  Nor is the federal government likely to change existing civil rights laws to add protection for gays.  Those happy days are over, and as an old gay activist this depresses me.  We worked so hard in Columbus to get a civil rights ordinance on point and swore that the State of Ohio would someday follow, but that latter part is wrong. [See “The History of Gay Rights in Columbus,” June 4, 2012, http://douglaswhaley.blogspot.com/2012/06/history-of-gay-rights-in-columbus.html ] Here’s why:

The current federal Civil Rights Act prohibits (among other things) discrimination in hiring based on various characteristics such as gender, race, religion, etc.  Since 1974 there’ve been efforts in Congress to amend the Civil Rights Act to add sexual orientation and gender identity to the list.  The current version of the proposed legislation is called the “Employment Non-Discrimination Act” [ENDA] and, surprisingly, it passed the Senate last fall with bipartisan support, but has no chance of passage in the current Republican-controlled House of Representatives.  No matter, because many LGBT and liberal organizations [The American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center, but, notably, not the Human Rights Campaign] have withdrawn their support of the current version of ENDA because the Hobby Lobby decision sparked the addition of an amendment that would exempt organizations who discriminate on the basis of religious beliefs.  That’s right: any employer who claimed a religious aversion to homosexuality could post signs saying “No Homos Need Apply.”  We all know that a version of ENDA that exempts religious decisions to hire or fire gays would be a toothless tiger, and that’s led liberal groups to strip away their endorsement of ENDA.

The hope is that future versions of ENDA at both the federal and state level will exclude such an exemption (except as to hiring by religious organizations, say a church, themselves), but you might as well kiss that vain wish goodbye.  Every time some version of ENDA is proposed hereafter there will be an immediate amendment offered to adopt a “religious beliefs” exception, and what politician, federal or state, ever hoping to be reelected will be willing to vote against religious beliefs?

So I’ll say it here: attempted gay rights legislation at all levels is dead unless it gives religions a pass and allows them to hire or fire gays at will, forbid them housing, or deny them the right to buy wedding cakes (“public accommodations”).  Indeed in the near future there might be major pushes to add religious exemptions to existing statutes and ordinances protecting gays from just such miserable treatment.

The Hobby Lobby decision has opened the door to the argument that people (including corporate people) have a right to discriminate against anything or anyone that violates their religious beliefs.  I’m no constitutional law scholar (my field is commercial law), but it will be interesting to see if the Court now says, for example, that a Muslim-run organizations may refuse to hire Jews since the Quran entombs hatred of the Jews as a basic tenet.  Surely the Court won’t go that far, but how do we tell the Court’s Hobby Lobby blessing of a religious objection to abortion (a constitutional right since Roe v. Wade) from a religious objection to dealing with groups who are sinners in the texts of various sacred books.  [See “Does the Bible Really Condemn Homosexuality?” June 29, 2014; http://douglaswhaley.blogspot.com/2014/06/does-bible-condemn-homosexuality-and.html  ]

When the five conservative Republicans (all Catholics, by the way) sided with Hobby Lobby’s refusal to obtain insurance to protect their employees’ family planning needs, didn’t the Court see that this can of worms includes some very destructive snakes?  One of those serpents— damn it!—will devour the hopes of gays for protection they so dearly need.

A Religious Business Belief To Pray For

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Related Posts:
"Gay Marriage, The 6th Circuit, Jeffrey Sutton, and the Supreme Court," November 13, 2014
"Alan Turing: Torturing a Gay Genius to Death," November 26, 2014

“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015; http://douglaswhaley.blogspot.com/2015/03/a-gay-hoosier-lawyer-looks-at-indianas.html

“A Guide to the Best of My Blog,” April 29, 2013