A couple weeks ago I was interviewed by my good friends who do the Reasonable Doubts podcast, just a few days after the Hobby Lobby ruling came down. I said then much the same thing that I said here, that I think it’s a very bad ruling but not nearly as far-reaching as some have said it was. A couple of commenters on the RD blog seem to have been highly upset by my position and I’m going to answer their arguments here. Brooks Austin seems to be particularly agitated by what I said, saying I was an “idiot” on the episode.
I usually have a lot of respect for Ed Brayton but frankly I thought he was an idiot in this episode if he really sincerely believes there isn’t going to be for a push to expand the broad religious exemptions for discrimination against LGBT employees by using the Hobby Lobby ruling.
But I didn’t say there wouldn’t be a push to use the ruling to demand exemptions from anti-discrimination laws that cover sexual orientation, I said that it’s very unlikely that they would be successful in doing so. I was right then and I’m still right on that score. As the court is currently configured, there’s virtually no chance that a corporation is going to be granted an exemption under RFRA from a state anti-discrimination law as applied to LGBT people. I explained in some detail why that is and I’ll do so again here.
Justice Kennedy is, as almost always, the key vote here and there isn’t a chance in hell that he would ever agree to such an exemption. Justice Kennedy handed down the only three pro-gay rights rulings in the history of the country, including Romer v Evans, which dealt pretty squarely with this question. In Romer, the case involved a Colorado state law that forbid local governments from passing ordinances that protected LGBT people from employment (and housing) discrimination. Kennedy’s ruling was unequivocal, that such a law could only be the result of anti-gay animus (much like his ruling in Windsor) and was a clear violation of the Equal Protection Clause even under the lowest level of scrutiny, the rational basis test. It is virtually inconceivable that he would vote to allow such a loophole to gut state anti-discrimination laws. If he were ever to vote that way, I would close down this blog and retire from the pundit business. I am that certain of it.
I should also point out that RFRA does not apply to state laws, as the court ruled in 1997, so there would be no RFRA basis for even claiming such an exemption (federal law does not forbid anti-gay discrimination, only some states do). And that, as I said on the show, the Supreme Court has already had the opportunity to rule on such a case, the New Mexico case involving a wedding photographer who violated state law forbidding discrimination against gay people, and they turned down the case, allowing the lower court order upholding that law to remain in place.
I also think it was highly irrational that Ed Brayton didn’t even bother to read any of the articles or the arguments the LGBT activist groups used to justify their pulling support for ENDA before he boldly declared them to be wrong. But who cares if 99% of LGBT activist groups have genuine concern about the broad religious exemptions in ENDA or what they actually say? Because clearly Ed thinks he’s the only right one and can’t be wrong about this and I’m disappointed you guys didn’t push him harder on this.
This is a pretty obvious distortion of what I said. I did not “boldly declare” that the groups who pulled their support from ENDA were wrong. Remember that the press release announcing their change of position was sent out only a few hours before we recorded this interview and I hadn’t had time to read it, and I said so at the time. What I had seen, and what the RD hosts had seen, were headlines that suggested that they were pulling their support due to the Hobby Lobby ruling, which made little sense to me at all. I mean, if they really thought the court was going to grant a religious exemption from state anti-discrimination laws for LGBT people, wouldn’t they want all the more to pass ENDA and forbid such discrimination at the federal level too?
What I said when asked about that was, “I’m not sure it has anything to do with this decision.” And I said, “Let me say up front that I haven’t seen any of this. I’ve seen some headlines, I’ve seen references to it, like on Facebook today, but I haven’t had time to actually read those.” I then speculated that perhaps the withdrawal of support for ENDA might have something to do with the question of whether to include gender expression, which has been a subject of controversy among the gay rights groups for years. And I said, “I don’t know whether that’s what this is really about or not.”
And I further said that I’m “baffled by anyone who seriously thinks that this ruling either A) means ENDA can’t pass (ENDA can’t pass because the Republicans control the House). Or that B) If it did pass, that it would be struck down by the courts.” Immediately after the recording of the show ended, I did go and look up the press release from those groups that pulled their support from ENDA and wrote a post about it. And it turns out that the headlines were mostly wrong, that those groups did not pull their support from ENDA because they thought the Hobby Lobby ruling would void it but because the religious exemption in the law itself was too broad. And I wrote at the time:
Is it possible that a religious-owned company is going to file a suit saying they should be granted an exemption from such an anti-discrimination law because of the Hobby Lobby decision? Sure. Would they win such a suit? It would be extraordinarily unlikely.
If such a case were to reach the Supreme Court, does anyone seriously think that Justice Kennedy, who authored the only three gay rights decisions in the nation’s history, is going to vote with the other conservatives on the court that the states, or the federal government if ENDA is passed, do not have the authority to forbid anti-gay discrimination or that this is not a compelling state interest? Not a chance in hell. As I told the RD guys, if that happens I’ll eat a bucket of topsoil…And on the question of ENDA, I agree with the organizations above. It should be passed, but not with such a broadly-worded religious exemption.
So no, I did not “boldly declare” that those groups were wrong to pull their support from ENDA, I said that IF that decision was made because they thought the Hobby Lobby ruling would lead to it being overturned, that would be wrong. But they didn’t do it on that basis, they did it for an entirely reasonable basis and they were right to do so.
Brooks Austin then had a second comment:
What Ed doesn’t get about the religious exemption issue in regards to LGBT employees is that once you sign onto a religious exemption for one issue, by what standards do you decide when they don’t apply to others? What standards is the Supreme Court using to decide that religious exemptions applies to women yet somehow doesn’t apply when it comes to racial minorities? Neither the Supreme Court nor Ed ever explains this.
No, Ed gets it perfectly well. And I’ve explained many times, as has the court, what standards are used to decide whether to grant a religious exemption from a law. It is mandated in RFRA (which, again, does not apply to state laws so it can’t be used to claim an exemption from a state anti-discrimination law) that the government must show that the regulation being challenged is the “least restrictive means of achieving a compelling state interest.”
And in this case, the court did not, in fact, ruling that there was not a compelling state interest in maximizing access to birth control, they ruled that the law was not the least restrictive means of achieving that goal. They specifically mentioned two ways the government could achieve the same interest, either by extending the secondary accommodation to for-profit companies or by simply paying for access to birth control for everyone regardless of their insurance policy. Either of those options would achieve the same goal without triggering any case for an exemption. And in fact, the second idea would achieve the goal far better than the current policy and it’s a law that I would strongly favor, as I’ve argued that all birth control should be free to everyone many times. So yes, I have explained this in great detail.
Even assuming Justice Kennedy is as gay friendly as Ed makes him out to be, he’s assuming Kennedy’s gay friendly worldviews will over-ride his anti-government libertarian policies. Even with last year’s famous DOMA ruling, the Supreme Court never addressed whether or not marriage was a fundamental right or if marriage should be decided by the states. Judging by their reactions to the Prop 8 case that everyone seems to forget about, the Supreme Court seems to favor the “states’ rights” position when it comes to gay rights as opposed to a big government approach.
No, I’m not “assuming” that, there is much evidence for it. Kennedy certainly did not favor a “states’ rights” position in Romer, when he overturned a state law allowing anti-gay discrimination. He certainly did not favor a states’ rights position in Lawrence when he overturned state laws against sodomy. And in Windsor, the only thing being challenged in the case was Section 3 of DOMA, which applied only to federal recognition of same-sex marriages where they are legal. The lawsuit was filed against the federal government, not any state that forbids same-sex marriage. It never addressed whether or not marriage was a fundamental right or if marriage should be decided by the states because that was not at issue in the case.
Marcene also left this comment:
Or even just how dismissive Ed was on the impact this ruling would have on women. It is a ruling for discrimination – just against women.
I was not at all dismissive of the impact this ruling will have on women. I think it has an enormous effect on women and that it was an entirely wrong decision (the ruling should have been that there is no substantial burden on the company’s free exercise of religion and therefore no exemption). And I think it would have been very interesting if the Obama administration had argued that granting such an exemption would amount to discrimination against women, but they didn’t.
Frankly, I wish they had. I think a very strong case could be made that because this amounts to discrimination against women — because it applies only to those forms of contraception that are used by women, and only the most effective forms — that the demand for an exemption should have to meet heightened scrutiny. That could potentially have changed the outcome. I absolutely agree that the result of this decision is discrimination against women and that it is completely wrong on that basis, as well as the others I’ve mentioned. But the Obama administration didn’t make that argument, so the court did not address it.
I think this was a very bad decision, as I’ve said repeatedly. But I don’t think we should allow our outrage to justify bad arguments and unlikely conclusions. I hardly think that’s an unreasonable position.