Tuesday, July 1, 2014

Will Hobby Lobby give Title VII fits?

Yesterday, the Supreme Court decided Burwell v. Hobby Lobby Stores [pdf], holding that a closely held corporation is a “person” that can hold a religious “belief” for purposes of the Religious Freedom Restoration Act (which prohibits the federal government from taking any action that substantially burdens the exercise of religion unless it is the least restrictive means possible). Thus, the plaintiff was able to rely on its religious beliefs to opt out of the requirement of the Affordable Care Act (aka Obamacare) to provide healthcare coverage for contraceptives. 
The opinion is long, but worth the time to read. I want to focus, however, on Justice Ginsburg’s scathing dissent.
Justice Ginsburg believes that the majority’s opinion is not limited to the ACA’s contraceptive mandate, but instead will enable any company to opt out of any non-tax law on the basis of a religious belief:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. 
What about Title VII and the other ant-discrimination laws? What if a company has a sincerely held religious belief that it is okay to discriminate based on race? Or, how about a company, that, because of its religious beliefs, segregates its men and women? Would Hobby Lobby permit those employers to opt out of Title VII? Hobby Lobby does not answer these questions. Instead, it leaves them to lower courts to interpret in future cases. We will have to watch and see how these issues play out down the road.

I agree, however, with Justice Ginsburg, that we need to worry about how companies will try to use this opinion to opt out of laws they do not like. I am concerned that this opinion could lead to a slippery slope of companies using religion to pick and choose laws based on their socio-political beliefs, which could undermine our civil-rights laws, and is antithetical to the First Amendment religious freedoms upon which out country was founded.