I Am Quoted In Newsweek about Hobby Lobby, Elane Photography, and Title VII

July 9th, 2014

Newsweek has a thorough article on Hobby Lobby, and its implications to gay rights and employment discrimination cases, more broadly. I am quoted, along with Kent Greenfield and Allison Orr Larsen:

Under the RFRA, the law that the Hobby Lobby case turned on, a law is allowed to burden someone’s religious freedom if it furthers a “compelling” government interest in the least restrictive way possible. In the Hobby Lobby case, for example, the court assumed that the government had a compelling interest in making sure women receive birth control coverage, but decided that the requirement that employers cover it was not the least restrictive way of achieving that goal. The government could pay for the coverage itself, Alito reasoned, and then achieve its goal without burdening religious business owners.

For this reason, Josh Blackman, a law professor at South Texas College of Law, doesn’t believe Hobby Lobby will ultimately lead to employment discrimination for various minorities—because the government has a compelling interest in ending such discrimination and there’s no workaround except by simply prohibiting it. Perhaps Hobby Lobby will lead to more RFRA cases, he said, but it’s unlikely religious employers would win those challenges.

What’s more likely, Blackman says, are exemptions for companies that don’t want to serve certain groups, like the LGBT community in the Elane Photography case. A case like that involves a form of speech, in which a company is paid to create something—in this case, photographs of a gay wedding—that goes against its religious beliefs. “That’s a much more difficult issue,” Blackman said. “Invariably, these issues arise when someone is asked to do a service for them.”

I discussed these thoughts at some length in this post. I’ll repost it here.

One of the major lingering questions following Hobby Lobby, is how claims of religious liberty apply to generally applicable employment discrimination laws. I’ve blogged before about RFRA and SB 1062, as well as RFRA challenges to anti-discrimination laws.

The majority opinion by Justice Alito addressed Title VII several times, to explain that it has built-in exemptions for certain religious institutions.

By contrast, HHS contends, statutes like Title VII, 42 U. S. C. §2000e–19(A), expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No. 13–356, p. 26. In making this argument, however, HHS did not call to our attention the fact that some federal statutes do exempt categories of entities that include for-profit corporations from laws that would otherwise require these entities to engage in activities to which they object on grounds of conscience. See, e.g., 42 U. S. C. §300a–7(b)(2); §238n(a).27 If Title VII and similar laws show anything, it is that Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations.

Justice Ginsburg, in dissent, rejects the majority’s reading of Title VII:

Typically, Congress has accorded to organizations religious in char- acter religion-based exemptions from statutes of general application. E.g., 42 U. S. C. §2000e–1(a) (Title VII exemption from prohibition against employment discrimination based on religion for “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on . . . of its activities”); 42 U. S. C. §12113(d)(1) (parallel exemption in Americans With Disabilities Act of 1990). It can scarcely be maintained that RFRA enlarges these exemp- tions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Greens or Hahns. Nor does the Court suggest otherwise. Cf. ante, at 28. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Air­ lines, Inc. v. Hardison, 432 U. S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”).

Justice Alito retorts that discrimination based on race can never be countenanced.

The principal dissent raises the possibility that discrim- ination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work- force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that criti- cal goal.

Notably, he does not mention gender, or sexual orientation, or any other protected statues. This leads Justice Ginsburg to cite a string of cases where religion is raised as a defense to discrimination charges–including (drumroll) Elane Photography.

Hobby Lobby and Conestoga surely do not stand alone as com- mercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (CA4 1967), aff’d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn. 1985) (born-again Christians who owned closely held, for- profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986);

If I may offer a brief interlude here. That Justice Ginsburg has to cite from a South Carolina case from 1966, a 4th Circuit case from 1967, and a Minnesota Supreme Court case from 1985, as the *leading* examples of defending claims of discrimination based on religion, tells me that this problem may not be particularly salient in today’s society. You just don’t see claims like this being made. But the next example is where the money is.

Elane Photog­ raphy, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”? Ante, at 37.

Of course, the Court denied certiorari in Elane Photography. But they cannot duck this issue. Especially as ENDA, which seems dead in Congress, may be enacted in a reduced form through executive order. There are already debates about the scope of the religious liberty exemption to the executive order.