Defending My Recent Reasonable Doubts Appearance

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.

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  • jeffreyfalick

    I think that your analysis of the case and other comments were immensely reasonable. The decision was not, but that has nothing to do with your cogent analysis. I found it very helpful.

  • Michael Heath

    I’m not well-versed on the threats posed by the Hobby Lobby ruling. I do know that J. Ginsburg’s dissent is much more foreboding than Ed’s conclusion. I’d welcome Ed explaining in a blog post why he’s right and Ginsburg’s wrong on the threat posed by that ruling.

  • Pierce R. Butler

    As the court is currently configured, … Justice Kennedy is, as almost always, the key vote here…

    And as several commenters pointed out, Anthony M. Kennedy is not a permanent feature (or bug) of the US Supreme Court.

  • John Pieret

    Chicken Little lives.

    Yes, Justice Kennedy may die. But Scalia may too … or Thomas or Ginsberg. The President at that time may be liberal, progressive or conservative. That doesn;t mean the Court will will change. Think Souter and Earl Warren. What happens happens. Pretending to know ahead of time is on the order of predicting the Rapture.

  • blindrobin

    You sir are, and I understand why, overly optimistic.

  • lofgren

    You don’t have to pretend to know who is going to replace Kennedy to know that relying on he court “as it’s currently configured” to make predictions about how any case that isn’t being judged RIGHT NOW is quite foolish. The ruling opens up the possibility of pushing the exemption further, and that is more than sufficient reason to call Ed’s confidence foolishly optimistic. By the time a case involving discrimination against homosexuals wends its way to the Supreme Court, it would be surprising if the configuration of he court HASN’T changed.

  • I don’t think we should be looking at the DOMA case to predict Kennedy’s decision on state laws regarding LGBT discrimination policies because as you say, the DOMA case was focused on the federal government and not the states. What I think we should be looking at instead is the Prop 8 case because while Kennedy did rule in support of gay rights in DOMA, his dissenting opinion in Prop 8 was informed more by his belief in states’ rights. This is a direct quote from his dissent, “”In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. “Through the structure of its government, and

    the character of those who exercise government authority,

    a State defines itself as sovereign.”





    501 U. S. 452, 460 (1991). In California and the 26 other

    States that permit initiatives and popular referendums,the people have exercised their own inherent sovereign right to govern themselves.The Court today frustrates

    that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision

    holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principlesof justiciability. Those errors necessitate this respectful dissent”

    So while Kennedy may personally be very supportive of gay rights and he may be against the federal government discriminating against LGBT people, I think this quote does seem to indicate that Kennedy is uncomfortable with the idea of telling individual states how they should rule on LGBT issues. This article also describes Kennedy as a Reagan-appointed judge who started out as having “basic conservative leanings” who later seemed to evolve into an anti-federalist libertarian, so clearly I’m not the only one who thinks Kennedy has libertarian leanings.

    You also say that the LGBT activist groups didn’t pull their support for ENDA due to Hobby Lobby but because of the broad religious exemptions. While it’s true they did pull their support due to the religious exemptions, it was the Hobby Lobby ruling that informed their decision to reconsider the exemptions. I have this direct quote here from The National Gay and Lesbian Task Force as to why they pulled their support, “Frankly, it is becoming harder and harder for me, for us, to tolerate our own moral and political inconsistencies by protesting the Hobby Lobby decision, then advocating for the current ENDA with its broad religious exemption, and then insisting that the president not include a broad exemption in the upcoming executive order protecting LGBT people working for federal contractors. How can we demand that a woman have coverage for reproductive healthcare at a company but support a bill that allows a lesbian cafeteria worker in the religiously affiliated hospital next door to be fired from her job?

    In the last year alone, we have seen a wave of attempted and successful efforts at imposing religious exemptions on issues of reproductive health and LGBT equality on the local, state, and federal level. And it is crystal clear in the week following the Supreme Court’s Hobby Lobby decision that the momentum is building on religious exemptions. Not 48 hours after the decision, Pastor Rick Warren joined other faith leaders in a letter to the president asking that he include a broad religious exemption in the contractor executive order. We cannot be complicit in writing such exemptions into federal law.”

    Here’s the link to their full explanation: It should also be pointed out that the LGBT activist groups haven’t fought over transgender rights since around the 2007-2009 era after the last time they failed to get ENDA passed. The HRC has since apologized for removing the transgender policies and pretty much all LGBT activist groups universally support transgender rights now.

  • I thought I had copied and pasted the link to the article about Kennedy’s libertarian leanings, but I guess it didn’t copy/paste it for me. Anyway, here’s the link about Kennedy’s political philosophy:

  • I should also probably point out that I am gay man living in the bible belt and my state doesn’t have any workplace discrimination policies for LGBT employees so this case is very concerning for me.

  • eric

    Brooks @7:

    So while Kennedy may personally be very supportive of gay rights and he may be against the federal government discriminating against LGBT people, I think this quote does seem to indicate that Kennedy is uncomfortable with the idea of telling individual states how they should rule on LGBT issues.

    Both you and Lofgren are using a form of the slippery slope argument. I don’t dismiss this out of hand, because yes its possible that this exemption could be used by conservatives to expand the whole notion of civil rights exemptions in the future. However, the trend in state lawmaking re: LGBT rights over the past several years has been one towards more gay rights, supporting gay rights. So the slippery slope argument is very weak when it comes to this particular issue. If you think that the only bulwark against LGBT workplace discrimination is state laws and circuit courts, because SCOTUS is not going to be any help, well then it’s still true that in the past several years 20 states have legalized SSM and 16 circuit courts have ruled that bans on SSM violate either their state’s constitution or the federal consittution. The states are getting more progressive on gay rights issues, they are not getting more conservative. The evidence does not support your worry that we will slide down the slope on this issue; if anything, it supports the notion that we are climbing up it. Yes, we could slide down later. Its possible. But I don’t think the evidence of the last few years supports the notion that this is most likely what’s going to happen.

  • This still isn’t answering the ultimate question. If the Supreme Court allows sincere religious exemptions to circumvent the law in some cases, by what standards are the Supreme Court using to decide when religious exemptions are justified and when they are not justified? So far I have yet to hear any explanation of this other than a suggestion that we should put our faith and trust in one man to do the right thing.

  • eric

    by what standards are the Supreme Court using to decide when religious exemptions are justified and when they are not justified?

    RFRA says “governments should not substantially burden religious exercise without compelling justification” and “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” [Source.

    IANAL but I’m guessing the terms substantially burden and compelling justification/interest both have fairly technical legal meanings, with lots of precedent surrounding how to determine whether something fits the category of a burden or a compelling interest.

    Now, if you’re looking for some mathematical algorithm where we calculate some numerical value for a proposed exemtion, plug it in, and come out with a completely transparent and objective “exemption ok!” answer, no, no such thing exists. Much of the judicial decision-making surrounding such questions is – and always will be – subject to human a judgement call. The precedents help making that judgement call more transparent and more objective. Multi-judge courts are supposed to help make sure the call is not just one person’s opinion, but many. However, at the end, judicial rulings do in fact come down to trusting that the people on the bench will apply the law as best they understand it. That’s the negative. The only plus is that this doesn’t make LGBT rights cases any different from any other question. You’re not getting the short end of the stick here, you’re getting the same imperfect stick everyone gets.

  • So basically we have no real reason to believe that the Supreme Court will definitely side with LGBT activists on employment discrimination policies and they’re just making this all up as they go along? Which seems to be exactly what I’ve been saying all along.

  • lofgren

    Both you and Lofgren are using a form of the slippery slope argument.

    You don’t know how slippery slope arguments work.

    The states are getting more progressive on gay rights issues, they are not getting more conservative. The evidence does not support your worry that we will slide down the slope on this issue; if anything, it supports the notion that we are climbing up it.

    This is a slippery slope argument. The slippery slope argument does not differentiate between “up” and “down.” The fact that you view the slope favorably does not mean that we are “climbing.” The argument is a fallacy either way.

    This ruling opens a significant hole in the law that those who wish to use religion for nefarious ends can leverage to their benefit. That’s the whole of the argument. It has nothing to do with slopes. Ed’s counter argument is that Kennedy, a single individual, has been fairly consistent in his support for LGBT rights. That is cold comfort. It is as if we point out a major fire hazard, say a frayed wire on a dry rag adjacent to an oil slick, and Ed says, “Oh, no problem, there’s a bucket of sand around here somewhere.” The bucket of sand could be very useful in the event of a fire. But you can’t rely on it being around when you need it, and there are too many scenarios where even the sand wouldn’t be enough to help us.

  • That one man can decide the fate of an entire class of American citizens’ rights for the entire nation should be disturbing to all of us.