One late June day last year, as the U.S. Supreme Court announced that it had struck down a key feature of President Obama’s health-care law in the Hobby Lobby ruling, Justice Ruth Bader Ginsburg fretted.
She said the decision, which held that businesses objecting to providing contraception to employees on religious grounds didn’t have to, had the potential to introduce “havoc.” The court, she said, had “ventured into a minefield.” Not only did it for the first time rule that corporations were exempt from the law on the basis of religion, but also encouraged and emboldened additional claims.
“Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage or according women equal pay for substantially similar work?” Ginsburg asked in her dissent. She added that the decision would only “invite for-profit entities to seek religious-based exemptions from regulations they deem offensive to their faith.”
On Thursday, her prediction rang true. Indiana Gov. Mike Pence (R) signed legislation that critics fear could effectively legalize discrimination by businesses against any demographic from gays to Muslims to Jews. The bill, called the Religious Freedom Restoration Act, will prohibit state and local governments from putting a “substantial burden” on a person’s free exercise of religion. The Hobby Lobby decision, which Pence cited in his announcement, turned on a 1993 federal law also called the Religious Freedom Restoration Act.
Pence said the measure is not about “discrimination.” It will “make certain that government action will always be subject to the highest level of scrutiny that respects the religious beliefs of every Hoosier of every faith,” he said.
Critics said it’s a way to bypass anti-discrimination laws, and would allow Indianans the right to cite their religious beliefs as a defense to justify what would otherwise be discriminatory practices. And while much the media coverage has focused on what this could mean for the gay community, equally troubling to some is what it could mean for others. The NCAA has already come out against the bill, saying it was “especially concerned” over how it “could affect our student athletes and employees.” And the major gaming convention Gen Con has threatened to pull out of Indiana as result of the bill.
“These bills are often incredibly vague and light on details — usually intentionally,” the advocate Human Rights Campaign said in a report. “… The evangelical owner of a business providing a secular service can sue claiming that their personal faith empowers them to refuse to hire Jews, divorcees, or LGBT people. A landlord could claim the right to refuse to rent an apartment to a Muslim or a transgender person.”
But the bill also does something more. It shows once again that the impact of Supreme Court rulings can go well beyond the legal confines of a particular decision and reverberate politically — and that even when a ruling is narrowly framed, the uses made of it can be quite broad.
“Our decision in these cases is concerned solely with the contraceptive mandate,” Justice Samuel A. Alito Jr. wrote in the Hobby Lobby case. Yet it fueled support for a measure involving sexual orientation in Indiana and elsewhere.
Indiana State Sen. Scott Schneider (R), who introduced the religious freedom bill at the end of last year, cited the Hobby Lobby ruling as inspiration. “In reviewing that court ruling, it became clear that Indiana’s laws were not reflective of federal law,” he said in a statement in December. “This bill, which I plan to author this session, would match federal law.”
That was exactly what concerned Ginsburg. When you endow for-profit organizations with the same religious rights as an individual, it’s done regardless of the “impact that accommodation may have on third parties who do not share the corporation owner’s religious faith.” And for some, it doesn’t take a lot of imagination to conjure up the resulting possibilities.
“The multiple ways in which such legislation is problematic are stunning,” said the Rev. V. Gene Robinson of the liberal Center for American Progress, writing in the Daily Beast. “… Such a law would, presumably, also protect members of the Westboro Baptist Church with its ‘God hates [homosexuals]’ approach; the crazy, renegade Mormon man and his 25 wives; Satan worshippers; and Scientologists. Almost anything passes for ‘religion’ in this country.”
Defenders say that’s nonsense. Such concerns are exaggerated because while the bill creates a defense for a business accused of discrimination, the government can defeat that defense by showing that enforcement furthers a “compelling government interest.” Anti-discrimination laws by and large serve the government interest, a group of 16 legal scholars wrote, “and nothing in the proposed legislation would change that.”