Now that we know that some corporations are people whose sincerely held religious beliefs must be respected, the next logical question is this: Is this good for the gays? The short answer is yes and no — for now.
In Burwell v. Hobby Lobby Stores, the question before the court was whether corporations providing health coverage to their employees could get out of the Obamacare mandate that said policies offer contraceptive services because doing so would violate the sincerely held religious beliefs of the company’s owners. By a decision of 5 to 4, the Supreme Court said yes.
The decision is limited in scope. The “corporations are people, my friend” ruling only applies “closely held corporations” Internal Revenue Service defines them as a company that “has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year.” Adding to the narrowness of the ruling was what Justice Samuel Alito said his decision wasn’t in response to the dissent.
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. The government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
That the majority opinion specifically warned that its opinion does not shield “employers who might cloak illegal discrimination as a religious practice” is a great thing. And it should be a brake on unscrupulous employers looking to use it to justify their bigotry. But this is where the gays come in. Many folks always seem to invoke their religious beliefs when talking about and expressing their opposition to issues related to abortion or the lesbian, gay, bisexual and transgender (LGBT) community. So, it wasn’t a far leap to fear that bosses would try to apply the same rationale to thinning their ranks of gay employees. After all, sexual orientation is not a protected class or characteristic like race is under Title VII of the Civil Rights Act of 1964. Nor was it unwise to fear that employers would try to deny LGBT workers coverage for, say, HIV medication or hormone replacement therapy for transgender men and women. Alito was clear on that last point when he wrote that the majority opinion “is concerned solely with the contraceptive mandate.” But that’s cold comfort.
One LGBT rights advocate and strategist I spoke with on background immediately after the ruling came down called it a “mixed bag.” While Alito makes it clear what corporations can’t do, there is recognition that that won’t stop companies from overstepping their legal bounds or affected employees from taking them to court. Another was advocate was slightly more optimistic. “The judges obviously were worried about the ‘slippery slope,’ so they drew a firm line between the contraception mandate and what they called ‘illegal discrimination,” said Lanae Erickson Hatalsky, director of social policy and politics at Third Way. “Because they specifically mentioned race but not sexual orientation, I’m sure some folks will still cite this decision in their arguments in favor of discrimination against the LGBT community, but it’ll be a hard legal row to hoe.”
But that’s a long-term worry compared to the millions of women who will lose or not get contraceptive care through their employer now that corporations are people.
Follow Jonathan on Twitter: @Capehartj