ENDA and the Hobby Lobby Minefield

By TJ Acena, PQ Monthly

If for some reason you missed our breaking story about George Fox University denying housing to a trans student, you are probably thinking a lot about “religious exemptions.” I wrote about them recently when writing about the Hobby Lobby decision by the Supreme Court.

One sentence summary: The majority of the justices ruled that Hobby Lobby, and other small companies, had religious beliefs and if complying with the Affordable Care Act violated their religious beliefs (by offering specific forms of birth control), then they could ignore the law requiring them.

In her dissent Justice Ginsberg wrote, “The court, I fear, has ventured into a minefield.” Welcome to the minefield. Because the decision is worse than we originally knew.

From Dahlia Lithwick and Sonja West at Slate:

The court didn’t say that the government could never require a company to do something that violated its religious beliefs, but rather that the government had to use the “least restrictive alternative.” That means that if there is a slightly less burdensome way to implement the law, it needs to be used. To prove that the Affordable Care Act’s contraceptive mandate was not the “least restrictive alternative,” the court pointed to a workaround in the law for nonprofits: If there are religious objections to a medical treatment, third parties will provide coverage to the employees.

Ok, great, third parties can come in and provide coverage to employees. It will be similar to how religious non-profits and organizations work, they sign a form saying that they don’t think women should have access to birth control because their interpretation of their religious beliefs says so and a third party can come in and help out. A workaround. Not ideal, but a workaround. It’s just like Justice Alito wrote in the majority for the Hobby Lobby decision, it “achieves all of the government’s aims while providing greater respect for religious liberty.”

The religious liberty of corporations.

But as Lithwick and West point out, just a few days later, a religious organization, Wheaton College (an evangelical school), filed a lawsuit that went to the Supreme Court:

claiming that the mere fact of signing a form noting their religious objection to contraception coverage triggered third parties to provide the contraception, which triggered women to have access to morning-after pills and IUDs, which in their view were akin to abortions, and thus violated their religious consciences. Signing the form, they said, was the same as actually providing the contraceptives themselves. It’s the butterfly effect of contraception. Any time Wheaton flaps its religious-conscience wings, a woman somewhere ends up with an IUD, and Wheaton’s religious liberties are violated.

And the majority of Justices agreed, and issued a temporary injunction, temporarily exempting from the work around.

Now while this injunction is temporary, consider where we are now. The men of the Supreme Court (minus Justice Breyer) voted in favor of Hobby Lobby. Reasoning that they hadn’t created a giant mess because there was that magical workaround that allowed third parties to provide coverage and that didn’t violate the religious beliefs of a company or religious non-profit. But within days the men of the Supreme Court (including Justice Breyer) have decided that the magical workaround they thought would keep this from becoming a giant fucking mess actually does violate the religious beliefs of a company or religious non-profit.

So I guess the rights of women never trump the religious convictions of an organization? I find it hard to believe that none of them saw how problematic the Hobby Lobby decision would be, because the women of the Supreme Court saw it. And as we’ve recently seen here in Oregon, religious exceptions can be used by religious organizations for actions besides denying women birth control. So it’s probably fine that the Supreme Court doesn’t have a clue what to do since they just decided that trying to work around the religious beliefs of organizations also violates their religious beliefs.

As all of this is going down a group of religious leaders send a letter to President Obama asking him to make sure there are some really sweet religious exemption bills in the Employment Non-Discrimination Act (ENDA) he is drafting. Because it seems like the Supreme Court set a precedent that businesses can have religious beliefs and they are more important than the employees of the corporation. 

ENDA, which would prohibit government contractors from discriminating on the basis of sexual orientation and gender identity, wasn’t getting any traction in Congress. So a lot of LGBTQ rights organizations were pushing for Obama to push it through as an executive order. After watching the Supreme Court trample over women’s rights these organizations realized that a bill with religious exemptions is basically no bill at all. So they started publicly pulling their support.

In a statement from Rea Carey of the the National Gay and Lesbian Task Force Action Fund:

Frankly, it is becoming harder and harder for me, for us, to tolerate our own moral and political inconsistencies by protesting the Hobby Lobby decision, then advocating for the current ENDA with its broad religious exemption, and then insisting that the president not include a broad exemption in the upcoming executive order protecting LGBT people working for federal contractors. How can we demand that a woman have coverage for reproductive healthcare at a company but support a bill that allows a lesbian cafeteria worker in the religiously affiliated hospital next door to be fired from her job?

The National Gay and Lesbian Task Force Action Fund is joining with other organizations to support a federal nondiscrimination legislation that would grant LGBTQ people similar employment protections as Title VII of the 1964 Civil Rights Act. HRC is the only large org left that supports ENDA in any form, though it has said it also supports new federal legislation, and it’s taken a lot of flack for it.

What’s happening right now is the constant struggle for a civil rights movement. Do we settle for something imperfect now? Or do we hold our ground until we get the ideal later? HRC is still pushing, in it’s way, for the imperfect now. Right now in 29 states you can still be fired for being gay. The other organizations are pushing for the ideal later. Over the last year we’ve seen a spate of states pushing religious exemption laws and religious exemption just got a huge boost from the Supreme Court. We could be fighting against these exemptions for years to come. And loopholes which allow any organization or business the discretion of ignoring the law and/or discriminating against anyone they chose as long as it goes against their ‘sincere’ religious beliefs seems like a dangerous precedent to me. I know there’s still a lot we don’t know and things might play out we can’t imagine yet. But I understand the idea behind dropping support of ENDA, this is another culture war, maybe it’s time for a push for that decisive victory and put this long battle to an end as soon as possible.