Balancing the goods of religious liberty and equality under the law is a centuries-old process in the U.S., but it has entered a new phase after the Supreme Court’s Hobby Lobby decision. That decision expanded corporate personhood and opened the door for businesses to take actions that would otherwise be considered discrimination if not for the corporations’ new ability to possess religious beliefs.
In this emerging reality, how will the Religious Freedom Restoration Act (RFRA) be affected, what will religious liberty look like, and how will LGBT people be affected?
A new four-minute video from the Coalition for Liberty and Justice (of which New Ways Ministry is a member) lays out the challenges an unbalanced understanding of religious liberty could pose. It notes the fundamental role religious freedom has been granted in American history–both freedom of religion and freedom from religion–and that long-held understandings are currently being changed.
Specific to LGBT rights, the video highlights the firing of Carla Hale who taught at a Catholic school in Columbus, Ohio before being fired when her long term committed relationship to another woman became public in an obituary for Carla’s mother. The school was legally protected in the discriminatory firing because of its religious identity. The video notes:
“This is not an isolated issue. Carla’s story is just one of many where men and women are being forced out of institutions run by religious organizations for being gay, for being single and pregnant, for being married, or for using in vitro fertilization.”
New Ways Ministry has tracked related employment issues at Catholic institutions since 2008, which you can access by clicking here. You can view the Coalition’s video in full below or by clicking here.
Catholic publications, which have regularly covered domestic religious liberty controversies, published prolifically about Hobby Lobby and what it means for religious liberty in the US. Cathleen Kaveny wrote a lengthy piece for Commonweal that is worth one’s time to read in its entirety. She explains how the Supreme Court’s decision came to be, and what implications it may have for the Religious Freedom Restoration Act, which has helped balance competing claims since the 1990s. Kaveny writes:
“So, at this early date, it very much remains to be seen whether the Court has issued a narrow or sweeping decision with regard to the scope of religious exemptions from laws such as the Affordable Care Act…It is the future course of cases that makes me worry about the majority opinion—not the outcome in this particular case. For what the Court has done in the Hobby Lobby case is transform the Religious Freedom Restoration Act [RFRA]—a statute enacted by Congress to counteract a bad Supreme Court decision that harmed powerless religious minorities—into a tool for powerful minorities to resist what they believe to be dangerous social and political change. For example, it is not hard to see how the religious exemptions justified in the Hobby Lobby decision could also be applied to businesses that object to dealing with same-sex couples…
“The test [regarding RFRA claims] proffered in the majority opinion in Hobby Lobby amounts to little more than judicial intuitionism. Does the government have a compelling state interest, say, in combatting racism? In the majority opinion, Alito suggests the answer is yes—but we’re not sure on what grounds. What about combatting discrimination on the grounds of gender or sexual orientation? My guess is that he would say no, but there’s no way to know. The logic of the Hobby Lobby decision is, I fear, as arbitrary as it is partisan.”
Washington Post columnist E.J. Dionne observed that the Court’s decision is also rooted in class divisions, privileging corporations over the rights of individuals and workers.
Jesuit Fr. John Whitney wrote for America‘s blog about the troubling notion of granting personal rights to corporations and the negative impact this will have on the common good. As an aside, one wonders how some Catholics support a vision of religious liberty which does not privilege the marginalized in our society while advocating for discrimination against women and LGBT people.
Moving forward, the editors of the National Catholic Reporter predict further legal difficulties, saying “One of the few certainties…is a guarantee of more litigation.” Their editorial wades into healthcare accommodations, but continues by pointing out such accommodations are not possible in other instances, like LGBT rights:
“The U.S. Catholic bishops, the Becket Fund for Religious Liberty, and like-minded religious freedom warriors might cheer victory in this instance, but it is a thin liberty bought on the cheap with a blind eye to the long-term implications written into the fine print of this deal…
“The real questions in the future — having granted corporations religious personhood — is how the reasoning of this case will come to bear on issues like spousal benefits for gays, stem cell treatments, rental space for gay receptions and the like. In such cases, the cost cannot be dumped on an insurance company. Whatever accommodations are finally arrived at for the Affordable Care Act will only be the equivalent of a legal Band-Aid that may work for the contraceptive mandate. It won’t for tougher cases further on down the road.”
Finally, Jack Jenkins at ThinkProgress explained why the Hobby Lobby decision not only undermines religious liberty and will cause further litigation, but actually harms most people of faith. He identifiess religious adherents who reject Hobby Lobby‘s flawed understanding of religious liberty and the changes to RFRA it imposed:
“These voices represent the majority of religious Americans who insist that today’s pro-Hobby Lobby decision isn’t about protecting “religious liberty.” Instead, it’s just a victory for one kind of religion, specifically the (usually conservative) faith of those privileged enough to own and operate massive corporations. That might be good news for the wealthy private business owners like the heads of Hobby Lobby, but for millions of religious Americans sitting in the pews — not to mention thousands working in Hobby Lobby stores — their sacred and constitutional right to religious freedom just became compromised.”
You can read Bondings 2.0‘s full coverage of the Hobby Lobby decision, the Employment Non-Discrimination Act’s future, and the Obama executive order banning LGBT discrimination by federal contractors by clicking here or the ‘Employment Issues‘ category to the right.
–Bob Shine, New Ways Ministry
America: “After Hobby Lobby”
Talking Points Memo: “How Hobby Lobby Came to Represent Christianity, While Progressives were Left Behind“