Abstract
Legislation about female bodies has been a concern of social work since the early days of Hull House. Specifically, two Hull House residents and physicians, Alice Hamilton and Rachelle Yarro, were involved in programming and policy work related to the access to contraceptive devices (Haslett, 1997). Hamilton and Yarro sagely understood the ability (or lack thereof) to control reproduction as being related to “the causes and consequences of poverty, the role and status of women, classism, and ethnocentrism” (Haslett, 1997, p. 273). Reproductive rights continues to be a disputed turf on which women’s agency is battled over, compromised, bartered with and diminished through legislation, health policy, and Supreme Court decisions. The recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. (2014) highlights multiple concerns regarding embodiment from a feminist perspective, including but not limited to the right of a corporation to determine if and which kinds of contraception it will provide as part of workers’ health care package, the determination that a corporation is a “person” with religiously held beliefs, and ultimately that a corporation’s religious noncorporal body has the same or perhaps more rights than women’s actual, corporal bodies. The implications of this Court decision potentially has dire consequences for people in the United States as we begin to think about the rights of corporations to discriminate against because it is a “person” complete with a belief system and a religious perspective protected by the constitution, even when that discrimination violates an otherwise enforceable antidiscrimination law.
In the Supreme Court’s June 30, 2014, decision in Burwell v. Hobby Lobby Stores, Inc. (2014), Hobby Lobby the owners of several closely held, for-profit corporations objected to regulations issued under the Patient Protection and Affordable Care Act that required them to provide cost-free health insurance coverage to women for certain methods of contraception. The basis of the companies’ objections was that the regulations violated the sincerely held religious beliefs of the companies’ owners. Although the companies asserted that the regulations violated both the Constitution (specifically, the First Amendment’s Free Exercise Clause) and the Religious Freedom Restoration Act of 1993 (RFRA), the Court, in a deeply divided decision, decided the case solely on statutory grounds under the RFRA.
The RFRA prohibits the federal government from substantially burdening a person’s exercise of religion, even if that burden results from the application a law of general applicability, unless the government can show that (1) the enforcement of the law furthers a compelling government interest and (2) enforcing the law is the least restrictive way to further that interest. The Hobby Lobby Court held, for the first time, that the term “person” in RFRA’s protection of a “person’s” exercise of religion includes for-profit corporations. The Court then held that, even assuming the federal government has a compelling interest in providing the challenged contraceptives to women, it did not use the least restrictive means to meet that compelling interest. As a result, these for-profit corporations could not be required to follow the regulations, rather the government would be required to pay for the contraceptives for the women who worked for these companies.
The Hobby Lobby majority attempted to characterize its holding as a narrow one. In a scathing dissent, Justice Ginsburg disagreed with this characterization and called the majority opinion “a decision of startling breadth” because it “demands accommodation of a for-profit corporation’s religious beliefs no matter what the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith. (Burwell v. Hobby Lobby Stores, Inc, 573 U.S. 3, 2014)” In the Hobby Lobby case, the “third parties” were “thousands of women,” whose ability to access contraceptive coverage impacts their very ability to “participate equally in the economic and social life of the Nation.”
Justice Ginsburg’s dissent also anticipated a possible slippery slope. She wrote: [H]ow does the Court divine which religious beliefs are worthy of accommodation, and which are not?…Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? (Burwell v. Hobby Lobby Stores, Inc, 573 U.S. 33, 2014)
Federal and state laws prohibit discrimination against certain protected groups in “public accommodations.” Although there are variations among state and federal laws, in general, a “public accommodation” is most businesses (governmental and private) or buildings that are open to, or offer services to, the general public. Public accommodation laws are a subset of antidiscrimination laws that also include protection from discrimination in other areas, such as employment, housing, and education. Federal public accommodation law protects against discrimination in covered public accommodations based on race, color, religion, or national origin; many state public accommodation laws extend the prohibition of discrimination to include gender, disability, sexual orientation, gender identity, and familial status. Most for-profit corporations, like the plaintiff corporations in Hobby Lobby, are subject to these federal and state public accommodation and antidiscrimination laws, meaning that, prior to the Hobby Lobby decision, corporations were prohibited from denying accommodation or services to women, lesbian, gay, bisexual, and transgender (LGBT) persons, or people of color and were also prohibited from discriminating against these groups in areas covered by federal and state antidiscrimination laws (employment, housing, education, etc.)
The Hobby Lobby decision, however, significantly changes the legal landscape and raises the question, what will be the outcome when the broadly defined religious liberty defined in that case—which now extends to for-profit corporations—butts up against state and federal antidiscrimination laws, including public accommodation laws? How will courts respond when a company, which before Hobby Lobby had to provide its services or sell its goods to LGBT individuals (or other protected minorities) pursuant to the governing public accommodation law, now denies goods, services, or other aspects of health care to individuals based on their protected status? Does Hobby Lobby give for-profit companies license to discriminate under the guise of the “sincere religious beliefs” of the companies and their owners? These are the troubling questions in a post–Hobby Lobby world.
The Hobby Lobby decision is particularly troubling as we stand on the cusp of a seismic shift in what some are calling the “civil rights issue of our time”—marriage equality. On October 6, 2014, the U.S. Supreme Court declined to hear seven cases pending before it, all of which presented the question of whether states may deny same-sex couples the right to marry. The high court’s decision to reject these cases meant that the same-sex marriage bans in five states were stricken. These 5 states joined 25 other states and the District of Columbia, which previously had recognized marriage equality, with 30 states and the District of Columbia recognizing same-sex marriage, lesbians, gay men, and their allies around the country declared victory.
The celebration, however, was premature. While marriage equality likely will reach all 50 states in short order, this victory is limited; the right to marry does not equate to full equality and civil rights for lesbian, gay, and bisexual (LGB) people. For instance, there is no employment protection on the federal level for LGBT individuals, and many states lack such protection. This means that in some states, lesbians and gay men will be able to marry, but it will still be legal for an employer to fire these same LGBT individuals based solely on their sexual orientation. Moreover, full equality will be difficult to achieve in light of the Hobby Lobby decision.
In short, Hobby Lobby should be a rallying cry for coalition building among marginalized communities as well as with progressive communities of faith, because the case will allow for-profit corporations to argue that they no longer are required to comply with public accommodation law. Put another way, Hobby Lobby gives ammunition to for-profit companies to discriminate based on gender, sexual orientation, disability, ethnicity, and perhaps even race, based on the religious beliefs of “the company” and its owners.
Indeed, such arguments were made prior to Hobby Lobby, but with little success. For example, in 2012, Masterpiece Cakeshop, a private, for-profit corporation in Lakewood, Colorado, refused to make a wedding cake for a gay male couple. The bakery’s owner told the men that because of his religious beliefs, the store’s policy was to deny service to customers who wished to order baked goods to celebrate a same-sex couple’s wedding. The couple brought a complaint with the Colorado Civil Rights Division (CCRD) based on Colorado’s antidiscrimination law, which prohibits places of public accommodation like the bakery from discriminating based on sexual orientation (among other protected statuses). The CCRD agreed with the couple and fined the bakery and required that it comply with the Colorado public accommodation law. However, this decision was issued before the Hobby Lobby case. The bakery owner has appealed the decision to the Colorado Court of Appeals and has relied on Hobby Lobby in arguing that the CCRD’s decision should be overturned.
Similarly, in 2006, a New Mexico photographer declined to photograph a same-sex commitment ceremony based on her deeply held religious beliefs. The New Mexico Human Rights Commission ruled that the business had engaged in illegal discrimination under that state’s public accommodation law. The New Mexico Supreme Court held that the First Amendment’s Free Exercise Clause does not protect such discrimination, even when grounded in the proprietor’s religious beliefs. As with the Masterpiece Cake case, however, this decision was issued before Hobby Lobby, and the outcome of the same case after Hobby Lobby would be far from clear.
Just days after the Hobby Lobby decision, Justice Ginsberg prediction about the slippery-slope effect of the decision became true. Relying on the decision, Gordon College, a small Christian College, signed onto a letter to President Obama, asking for a religious exemption to a planned order barring federal contractors from discriminating in hiring on the basis of sexual orientation. As one commentator noted, the previously recognized balance between antidiscrimination laws and religious liberty has “been called into question by Congress, the court, and Gordon College. Giving Gordon…license to discriminate in hiring would affect janitors, secretaries, or anyone else who applied for a job there. It’s more than just contraception access, or anti-discrimination policies, that are at stake. The court’s deference to religious objections seems to make it harder for a pluralistic society to impose any rules on itself at all” (Emphasis added).
Finally, at least one court has extended Hobby Lobby well beyond the bounds of its purported narrow holding. In Perez v. Paragon Contractors Corp., a federal district court in Utah held that a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS Church) could not be compelled to give testimony in a U.S. Department of Labor investigation about the potential child labor violations involving children from the FLDS Church. The individual argued that he made religious vows “not to discuss matters related to the internal affairs or organization” of the FLDS Church and to be compelled to discuss such matters would violate his sincerely held religious beliefs. Relying on Hobby Lobby, the court sided with the FLDS Church member, holding that he did not have to testify in the child labor violation investigation. In so deciding, the judge stated that he only needed to determine whether the member’s religious belief was “sincere,” and once he reached that determination, Hobby Lobby compelled a finding in the member’s favor.
Given that the Hobby Lobby decision is so new, its ultimate breadth and scope are currently unknown. However, given the positions already taken in the Masterpiece Cake case, the Gordon College letter, and the opinion of the Perez court, it seems likely that Justice Ginsburg’s warning is prescient.
The very real risk that Hobby Lobby poses to the long-standing, formal equality established by the country’s public accommodation laws cannot be understated. Social workers, lawyers, progressive religious communities, and others interested in equity and justice should seize this opportunity to build coalitions and unite against the erosion of the protection of the rights of people in the United States. We as feminist need to move beyond grumbling reactions to court decisions that protect corporations over people and to confront the deterioration of rights in multiple and creative ways, such as lobbying for amendments to RFRA, grassroots organizing and educational campaigns focused on the risks created by Hobby Lobby.