The public wrath directed at God-fearing Republican politicians in Indiana and Arkansas is pounding on the wrong Christians. The real culprits are the five Bible-thumping conservatives on the Supreme Court. They inspired this controversy with their inflammatory decision last year in the Hobby Lobby case.
The Supreme justices ruled then that corporate owners possess religious convictions entitled to First Amendment protection against intrusions by the federal government. That case was about birth control and Obamacare’s mandated healthcare coverage. But the Court’s half-baked logic excited the imagination of right-wing activists and lawyers.
If employers can reject the birth-control pills for their employees by citing their religious objections to contraception, do employers also have a right to refuse serving gay couples because they abhor same-sex marriages? Conservatives set out to initiate state laws and law suits designed to provoke more constitutional conflicts between church and state—cases that can wind up before the Supreme Court and will be decided by the same right-wing majority that issued the Hobby Lobby ruling.
However, one citizen’s religious convictions may look like old-fashioned bigotry to other citizens who suffer the consequences. Alex Luchenitser of Americans United for Separation of Church and State wonders if the Supreme Court has opened the door to “a new era of inequality.”
“Hobby Lobby,” he wrote in the Harvard Law and Policy Review, “is a sweeping decision that threatens to turn the Religious Freedom Restoration Act of 1993 (RFRA) into a law that, instead of protecting religious freedom, allows religious believers to force their faith on others in a variety of ways.”
Before the recent uproar occurred, Luchenitser had predicted it. Hobby Lobby“may trigger a drastic uptick in claims for religious exemptions,” he said, though plaintiffs in the most publicized cases (like the photographer who refused to do wedding pictures for a gay couple) have so far lost in court.
The Hobby Lobbydecision “may particularly impact LGBT cases,“ he explained. Because there is no federal law prohibiting discrimination against LGBT citizens, so most of the new cases will originate at the state level under state laws. Complaints that gain traction can eventually wind up in federal courts.
President Obama, for example, issued an executive order telling federal contractors they must not discriminate against gays and lesbians. “It will not be surprising if religiously affiliated federal contractors rely on Hobby Lobby to argue for an exemption to the prohibition against anti-LGBT discrimination,” Luchenitser wrote.
This result is very different from what Senators Orrin Hatch of Utah and Teddy Kennedy of Massachusetts had in mind back in 1993 when they co-sponsored the original RFRA. Both senators emphasized that the original legislation was a bipartisan attempt to avoid petty church-state conflicts and defuse nettlesome issues that might mean a lot to various faith groups but have only trivial effect on government’s objectives.