Amid the anguish that met the Hobby Lobby ruling by the Supreme Court on Monday was a surprising lone note of optimism from some quarters of liberalism. Some people, like Slate’s Mark Joseph Stern, suggested that in spite of the ruling’s damage to the cause of women’s health care, it was constructed with a narrowness that specifically prohibits use of its legal reasoning to protect religiously inspired discrimination against LGBT people.
The search for silver lining in darkness is one that I, as an almost maddeningly optimistic woman, can certainly appreciate. But it is profoundly misguided here. The view that the decision in Hobby Lobby precludes the use of “religious liberty” against any part of the LGBT spectrum relies almost exclusively on trusting the hand-waving of both Justice Alito and Justice Kennedy, whose “cabining” of their ruling relies primarily on a wing and a prayer.
As has been discussed at length elsewhere, starting with Justice Ginsburg’s own powerful dissent against the Court majority, the proclamation of narrowness on the part of Justice Alito is simply that: a proclamation. There is little in the ruling to suggest that it is not as broad as it appears to be; though it kept its focus to one part of the Affordable Care Act and addressed itself only to the specific claims of the plaintiffs, the reasoning the justices used to rule in their favor has no reasonable limits. At bottom, the ruling turns on the question of what the Religious Freedom Restoration Act (RFRA) of 1993 meant when it said “person.”
In short, as many of us now understand, this required the justices to once more adjudicate on whether corporations are “people” under the law. Whatever the answer, it would be broad by sheer necessity.
Beyond that, the Court majority believes that the RFRA “provided even broader protection for religious liberty than was available under [previous Court] decisions,” in the words of a footnote in the decision written by Alito. This is the faultline of the Court’s split. Justice Ginsburg witheringly disagrees with the idea that the RFRA was some kind of Big Bang siring a new universe of religious liberty that obviated all previous precedent, and accuses the majority of imputing nonexistent intentions to the near unanimous Congress that passed the bill.
It is important to note that this expansive conception of RFRA decided the case and carried the day because it is that national-level law that has served as a template for considerably more restrictive, deliberately anti-LGBT state-level laws that are being mooted nationwide. In that light, the Court endorsing a vision of the RFRA as a Year Zero in religious liberty jurisprudence should alarm us all.
Mark Joseph Stern suggests otherwise, arguing that it was precisely Justice Ginsburg’s dissent and its mention of queer people subject to religiously inspired discrimination that forced the Court majority to address the question and cabin its ruling.
He cites Justice Alito’s ruling, which says in part:
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield.
Alito goes on to say that the government “has a compelling interest in providing an equal opportunity to participate in the workforce” and that laws prohibiting racial discrimination “achieve that critical goal.”
Stern then characterizes Kennedy’s concurrence as “[going] even further” because he states that the free exercise of religion can’t “unduly restrict … employees in protecting their own interests.”
There are two noteworthy flaws in this reasoning.
First, LGBT people are not mentioned in either statement at all. There is no indication that either Alito or Kennedy sees LGBT people (inclusive of trans people) as occupying a position equivalent to people making claims of racial discrimination. Although Kennedy did rule in favor of same-sex couples in United States v. Windsor, it is critical to note that this case struck down a government regulation rather than affirming one. Kennedy has a history of viewing government intervention and regulation quite skeptically. I’ll return to this point later.
Second, as already established, the Court did not “cabin” their ruling as claimed. The RFRA, as the majority read it, grants wider latitude to religious “persons” (now including “closely held” corporations) than previous case law. The brake lines were also cut in their consideration of corporate “personhood.” Not only do “closely held” corporations (defined broadly by the IRS as any company that has more than 50 percent of its stock held by five or fewer individuals) make up as many as 90 percent of registered corporations in the United States, but there is nothing in the reasoning that would thwart claims made by publicly traded corporations.
Frankly, it is a pattern in the ruling to all but say, “It’s limited to X because I say so.” No legal logic helps to anchor the ruling in place.
This appears throughout the arguments made by Alito and Kennedy. What, then, prevents future anti-LGBT use of the ruling? Nothing, realistically speaking. Stern is correct that this ruling is not the “apocalypse” some of us feared, but the Roberts Court favors slow burns over fire and brimstone. Today’s “narrow” rulings become tomorrow’s precedents for something much larger, a pattern followed in Shelby County v. Holder (drawing on a purportedly “narrow” ruling in 2009’s Northwest Austin Municipal Utility District Number One v. Holder), which radically struck down Section 4 of the Voting Rights Act.
So, what could be next?
It is important to remember that while the term “LGBT” has become mainstream, most people intuitively mean cisgender gay, lesbian, and sometimes bisexual people when they invoke the term. Transgender people, oft forgotten, are on a different political track than their cisgender queer friends and pursue different policy issues accordingly, meeting with resistance very specific to our experiences.
Historically, trans activism has fought for everything from rights for sex workers, to health-care access, to fighting for legislation that meets our specific needs for equal access to the commons. For the latter, this has meant public accommodation laws that recognize sex-segregated facilities, like bathrooms or changing rooms, as particular sites of discrimination against trans people. It has taken a long time, but we have increasingly begun to win the argument that trans equality requires—among other things—the ability to access facilities congruent with one’s lived gender. This helps mitigate the risk of, say, forcing trans women to use men’s restrooms (which, in addition to being a safety issue, also violates trans women’s right to privacy by outing us to any onlooker).
As one would expect, these nascent rights have been met with a barrage of attacks from the religious right. Conservatives, smarting from their rout in the same-sex marriage debate, are now turning their gaze to trans people, employing the same tactics against us. We are coming to replace the cis gay man or lesbian woman as the cardinal bogeyman of the fundamentalist right.
In California and Maryland, there were attempts to gin up support for ballot referenda that would put those states’ recently enacted transgender rights bills to a public vote. California’s bill, in particular, was aimed at protecting the rights of transgender students, in part by ensuring that they have access to facilities congruent with their genders. Thus began a new wave of “bathroom panic,” which violently exercises the imaginations of conservatives (and some extremist feminists) to the breaking point.
The idea that transphobia is divinely ordained and supported in scripture is not new, but has risen to new prominence and urgency as the same-sex marriage issue fails to excite the conservative base as it once did.
Is this beginning to sound familiar?
According to the Hobby Lobby ruling, there is nothing to suggest that the Court would treat religious objections to trans accommodation any differently from the way they treated contraception (which, it is worth noting, enjoys a significantly higher approval rating than trans people do).
The Court’s test for evaluating which religious objections pass muster for them is fundamentally arbitrary. The syllabus of the ruling says, “This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.” But it does not say why; it is merely a hand wave.
What emerges is that there are no real guidelines on how to evaluate religious conflicts with law. This is a point that Alito addresses directly, but only to say that it is not the Court’s job to do so. Fair enough—but it continues to put the lie to the idea that the ruling is in any way “narrow,” or that we can reasonably predict what this ruling will and won’t be used to support. In spite of its protests to the contrary, the ruling has dramatically revised the meaning of religious liberty.
With this in mind, there is no way to guarantee that this ruling will not be used against, say, transgender people in the not too distant future. There is nothing to suggest that Hobby Lobby’s terms obviate claims made by an employer that allowing a trans woman to use the women’s restroom, for instance, is a violation of their religious beliefs. There is nothing to suggest that while the Court may uphold a law protecting trans people’s right to equal employment, they wouldn’t also strike down accommodation laws. Justice Kennedy, who often decides cases, has a history that suggests he might look askance at such laws and regard them as fundamentally different in character from older laws that ensure equal racial accommodation.
The other truly scary aspect of this ruling, and why it is such a threat to LGBT people and trans people in particular, is that it made abundantly clear that the factual veracity of a religious claim has no bearing whatsoever on the Court’s judgement. Justice Alito, in arguing directly with Justice Ginsburg’s dissent, claims that both the Department of Health and Human Services and Justice Ginsburg are “arrogating authority” to “tell the plaintiffs that their beliefs are flawed” and condemns this as an overreach. The scientific fact that intrauterine devices (IUDs) and Plan B aren’t abortifacients is irrelevant, so far as Alito and the rest of the majority are concerned.
It is noteworthy, then, that religious beliefs claiming transgender people are inherently unnatural, delusional, or sinful are based on scientifically falsifiable claims—most biological essentialism is. But religious people who believe that gender is pre-ordained in the womb, that “God made you to be a man/woman,” or that being trans must be a mental illness, won’t, in the Court’s judgement, have such beliefs evaluated on their merits, even when considering the harm they may perpetrate on third parties.
So as much as I would like to share Mark Joseph Stern’s optimism, this ruling is not “good for gays,” and it’s certainly not good for trans people.