"The court, I fear, has ventured into a minefield."
That's how Supreme Court Justice Ruth Bader Ginsburg concluded her dissent to the 2014 Hobby Lobby decision. That's the case in which the court ruled that businesses have a right to their own religious beliefs, and could use them to flout otherwise generally applicable federal laws — in this particular, the Affordable Care Act's mandate that businesses provide contraceptive coverage as part of their employees' health insurance.
The minefield Ginsburg warned about has now detonated. On Thursday, U.S. District Judge Sean F. Cox of Detroit ruled that a local funeral home was well within its rights to fire a transgender employee because its owner had a religious belief that gender transition violated biblical teachings.
Cox's ruling puts the lie to Justice Samuel Alito's denial, in his majority opinion in Hobby Lobby, that the ruling would provide a shield for a wide range of discriminatory practices by allowing them to masquerade as religious scruples. "Our decision today provides no such shield," Alito wrote.
Ginsburg, who was on the short end of a 5-4 decision, knew better. She said there could be "little doubt" that religious claims would proliferate, because the court's expansion of religious freedom to corporations "invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith." She asked, "where is the stopping point?… Suppose an employer's sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage … or according women equal pay for substantially similar work?"
She further cited court precedents holding that "accommodations to religious beliefs or observances … must not significantly impinge on the interests of third parties."
As it happens, the case before Cox involves all those points. At issue was the firing of Aimee Stephens by R.G. & G.R. Harris Funeral Homes, which she had joined as a funeral director and embalmer under the name Anthony Stephens in 2007. In July 2013, she informed her employer that she would transition to her female identity starting in 2013, living and working as a woman for a year before undergoing sex-reassignment surgery. Within two weeks, she was fired. A year later, the federal Equal Employment Opportunity Commission sued the funeral homes on her behalf.
At first, the case resembled an ordinary sex-discrimination matter. The employer's defense was that it had a written dress code distinguishing between men's and women's working garb, and Stephens had refused to wear men's clothing. Soon, the funeral homes added a religious dimension, citing the federal Religious Freedom Restoration Act, the same statute underlying the Hobby Lobby case. That legislation was designed to give people a pass on generally applicable laws if they could show that the burdens imposed on their beliefs outweighed the public's interest.
The funeral homes' owner, Thomas Rost, is a devout Christian who, according to court filings, "sincerely believes" that the "Bible teaches that a person's sex … is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex."
Rost believes "that the Bible teaches that God creates people male or female" and that he would be "violating God's commands if [he] were to permit one of the funeral directors to deny their sex. … He would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift."
The problems Ginsburg identified are obvious from this narrative. First, there's no way of determining if Rost's beliefs are genuine or even religious, and plenty of grounds to determine that they're presumptuous. Cox's ruling doesn't indicate what passages of the Bible were the basis of Rost's conclusion about its teachings, if any. His assertions that sex is "immutable" and that Stephens was taking advantage of a "changeable social construct" are contradicted by medical science. And the accommodation Cox is granting plainly impinges on the interest of a third party — Stephens, who has lost her job.
The ACLU, in a friend-of-the-court brief in the Stephens case, underscored the concerns that Ginsburg raised in Hobby Lobby. The implications of a ruling in the funeral homes' favor would be "staggering," it declared. "People hold sincere religious beliefs about a wide variety of things, including racial and religious segregation and the role of women in society. … If religious motivation exempted businesses from anti-discrimination laws, our government would be powerless to enforce those laws."
Among other things, "business owners could refuse service to people of color, on the ground that their religious beliefs forbid racial integration. Employers could refuse to hire women or pay them less than men, because their religious beliefs require women to remain at home. And educational institutions receiving federal benefits could impose religiously motivated racial segregation policies on their students. All civil rights laws would be vulnerable to such claims where the discrimination was motivated by religion."
Hobby Lobby, Ginsburg warned, was "a decision of startling breadth." How broad is just now becoming clear.
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