Fifty years ago yesterday President Lyndon Johnson signed the landmark Civil Rights Act of 1964 into law, outlawing discrimination based on race, color, religion, sex, or national origin in voter registration, in employment, in schools, and by facilities that serve the public. We should be dancing in the streets.
Instead of rejoicing, we are worried. We think all Americans should be worried. Why? Because just days before, on June 30, the United States Supreme Court’s majority decision in Burwell v. Hobby Lobby Store, Inc, potentially drove a truck through the protections of the 1964 law as well as any number of other federal laws, such as the Americans with Disabilities Act, the Pregnancy Discrimination Act, and the Age Discrimination Act.
Right now, the Hobby Lobby decision does substantial damage to the health of women and girls who are employees, spouses, or dependent daughters of the over 14,000 employees of the three plaintiff businesses. The Court held that the federal Religious Freedom Restoration Act (RFRA) of 1993 protects the free exercise of religion rights of the three for-profit, closely controlled corporations that brought the lawsuits and that the businesses do not have to comply with the federal law and regulations requiring employer group health plans to cover the 20 contraceptive methods approved by the Food and Drug Administration as preventive services without cost to the patient. The companies objected to covering four of those 20 methods in their health plans, claiming those four may interfere with a fertilized egg’s attaching to the uterus and the corporations’ owners have sincerely held religious beliefs that life begins at conception. With the Court’s decision, thousands of women who work at these companies or who are the company-insured wives or daughters of company employees will have to pay 100% of the cost if they need one of the four excluded contraceptives. Many will not have the funds to pay these costs and will go without or use second or third choice contraceptive methods which may not be the optimal medical choice. (NOTE: Extending RFRA’s protections to for-profit corporations was a huge leap that the majority of the Court was willing to take; This “startling breadth” is discussed by Justice Ginsberg in her dissent.)
In the future, closely held for-profit corporations and perhaps all for-profit corporations that can claim they have sincerely held religious beliefs can demand to opt out of federal laws they judge incompatible with their beliefs. Hence our worry. The majority decision tries to tell us this is not a big deal, that the decision is only about contraceptive health care coverage. We can only say “Really?” Since when do American courts make decisions whose holdings are not used by other litigants to support their positions in future, not identical cases?
It does not take much imagination to come up with claims companies might make in the name of their sincerely held religious beliefs that would strip employees and customers of rights protected by the laws of the United States. Without pointing fingers at specific religions, we’ll just say that in the past, and sometimes into the present, main line religions have claimed that slavery was okay; that interracial marriage was sinful; that a woman’s place was in the home not in the workplace; that unmarried women should not be sexually active and should be punished if they are; that gays and lesbians are sinners; and that a long list of well-established medical procedures (vaccinations, anesthesia, for example) are against their religious tenets. In the present day there are serious disagreements among established religions over many issues and even more disagreements among smaller groups and individuals—but all have the “sincerely held religious beliefs” that the Hobby Lobby majority opinion potentially allows to trump third parties federally protected established rights. The result could be that for-profit corporations claiming these beliefs could refuse to employ people, fire people, turn away customers, and otherwise not follow generally applicable federal laws because following them would violate their beliefs.
The Hobby Lobby decision is slightly over 72 hours old. Already, there is much commentary and speculation about it. We suggest you look at the Center for American Progress’ thoughtful historical and legal analysis, A Blueprint for Reclaiming Religious Liberty Post-Hobby Lobbyfor a better understanding of how we got to this point and how we can move forward, undo Hobby Lobby’s damage, and continue to foster the free exercise of religion.