Supreme Court Justice Ruth Bader Ginsburg wrote in her dissent in the Hobby Lobby case that the Court’s conservative majority had “ventured into a minefield” with its decision. Many of those mines have already been placed by right-wing leaders who claim a religious grounding not only for anti-gay, anti-abortion, and anti-contraception positions, but also for opposition to collective bargaining, minimum wage laws, progressive taxation and government involvement in the alleviation of poverty.
In Hobby Lobby, the Court found for the first time that for-profit corporations have religious rights just like real people and can therefore make claims under the Religious Freedom Restoration Act that they should be exempt from laws that burden their corporate “exercise” of religion. In her dissent, Justice Ruth Bader Ginsburg was deeply skeptical of Justice Samuel Alito’s assertion that the decision was limited only to the contraception mandate and only for closely held corporations.
“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 asked. How would the Court justify applying its logic only to religious views about contraception? “Indeed, approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’”
Ginsburg’s questions are not merely rhetorical. Conservative Catholic and evangelical leaders who have signed the Manhattan Declaration, including some U.S. bishops, declare themselves willing to engage in civil disobedience – maybe even martyrdom – in order to avoid any participation in abortion or any “anti-life act.” Nor, they declare, “will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.”
Alito’s majority opinion says Hobby Lobby does not extend the right to religion-based discrimination on account of a person’s race, but is conspicuously silent on other kinds of discrimination. That silence raises concerns that business owners could use the Hobby Lobby decision to opt out of a future federal LGBT civil rights law, or the Obama administration’s executive order against anti-LGBT discrimination by federal contractors.
Indeed, especially in light of Alito’s mention in Hobby Lobby that RFRA applies to the District of Columbia as a federal enclave, such a claim could be brought today to seek an exemption from D.C.’s Human Rights Act that prohibits discrimination based on sexual orientation. What happens if and when a local bishop instructs Catholic business owners that it would be sinful to treat legally married gay employees the same as other married couples, or an evangelical businessman declares he will not “bend” to DC’s Human Rights Act?
Business owners now have a new basis for trying to evade anti-discrimination laws and their responsibilities to their employees. Religious liberty is already the rallying cry for conservatives looking for a legal way to discriminate against LGBT Americans; other business owners have tried to use religion to justify opposition to minimum-wage laws and Social Security taxes. Faith groups are already trying to capitalize on the Hobby Lobby decision out of court; on Wednesday, a group of religious leaders asked the Obama administration for an exemption from a forthcoming federal order barring federal contractors from discrimination on the basis of sexual orientation or gender identity.
To be clear, the federal Religious Freedom Restoration Act that was used as the basis for the Hobby Lobby decision applies only to federal and District of Columbia laws and regulations, including presidential executive orders, not to state laws.
The stories of business owners being told they cannot exempt themselves from anti-discrimination laws have mostly involved questions about state-level civil rights and religious freedom statutes. Earlier this year the US Supreme Court declined to review a New Mexico Supreme Court ruling that a wedding photography business had violated anti-discrimination law when it refused to photograph a same-sex commitment ceremony.
Although Hobby Lobby does not apply directly to state laws, it could influence state courts weighing religious claims by business owners in states with their own versions of RFRA.
The clash between religious conservatives and advocates for LGBT equality has been well publicized. But the minefield Ginsburg refers to extends well beyond traditional “social issues.” Religious Right leaders have been working hard to convince conservative evangelicals that the Tea Party’s anti-government, anti-union, anti-welfare agenda is grounded in the Bible – an effort that started well before the Tea Party arrived on the scene.
David Barton is an influential Republican activist and “historian” who helped write the GOP’s national platform in 2012. Barton’s “Christian nation” approach to history has been denounced by historians and scholars, including some who are themselves evangelical Christians, but it is embraced by conservative politicians who extol a divinely inspired American exceptionalism. Barton teaches that Jesus and the Bible are opposed to progressive taxation, minimum wage laws, collective bargaining, and “socialist union kind of stuff.”
In addition, “mainstream” Religious Right leaders and conservative politicians are increasingly allied with a group of Pentecostal leaders who promote a “dominionist” theology that says God requires the right kind of Christians to take dominion over every aspect of society, including the business world. Many of them were sponsors of, and participants in, the prayer rally that Texas Gov. Rick Perry used to launch his ill-fated 2012 presidential campaign.
Thanks to previous Supreme Court decisions, alluded to and affirmed by Alito’s majority opinion in Hobby Lobby, the Court has for now seemingly closed the door to companies making a religious challenge to paying Social Security and federal income taxes based on their objection to a particular government program funded with those taxes. But the same might not be true for more targeted taxes and fees, or for laws regulating company behavior or the relationships between companies and their employees.
Opposition to unions has deep roots in Christian Reconstructionism, which has influenced the Religious Right’s ideology and political agenda. An early Christian Coalition Leadership manual, co-authored by Republican operative Ralph Reed in 1990, is a stunning example. A section titled “God’s Delegated Authority in the World” argues that “God established His pattern for work as well as in the family and in the church.” It cites four Bible passages instructing slaves to be obedient to their masters, including this one:
Slaves, submit yourselves to your masters with all respect, not only to those who are good and considerate, but also to those who are harsh. For it is commendable if a man bears up under the pain of unjust suffering because he is conscious of God.
The conclusion to be drawn from these slaves-obey-your-masters passages?
Of course, slavery was abolished in this country many years ago, so we must apply these principles to the way Americans work today, to employees and employers: Christians have a responsibility to submit to the authority of their employers, since they are designated as part of God’s plan for the exercise of authority on the earth by man.
More recently, Religious Right leaders have cheered on corporate-funded attacks on unions in Wisconsin and Michigan. Does the Hobby Lobby ruling open another front in the right-wing war on workers? It is not uncommon for companies to refuse to cooperate with union organizers or negotiate with a properly organized union. Imagine that a business owner objects to a National Labor Relations Board finding that they have violated the National Labor Relations Act by arguing in federal court that their company’s religious beliefs prohibit them from dealing with unions?
It’s not as far-fetched as it might seem. Since long before the Hobby Lobby case created an open invitation to business owners to raise religious objections to bargaining with unions, the National Right to Work Legal Defense Foundation has encouraged workers to raise religious objections to requirements that they join or financially support a union. Here’s an excerpt from their pamphlet, “Union Dues and Religious Do Nots.”
To determine whether your beliefs are religious instead of political or philosophical, ask yourself whether your beliefs are based upon your obligations to God. Do you simply dislike unions or hate this particular union’s politics? Or, does your desire to stand apart from the union arise from your relationship to God? If your beliefs arise from your decision to obey God, they are religious.
It is possible that conservative courts may not give the same weight to religious claims about anti-gay discrimination or the Bible’s opposition to unions or minimum wage laws as they did to Hobby Lobby’s anti-contraception claims. Those claims were based on the owners’ belief – one that runs counter to medical scientific consensus – that some of the most effective forms of birth control work by causing abortions, and are therefore the moral equivalent of murder.
But as Justice Ginsburg pointed out, it is not clear how courts will differentiate between different types of claims. And it will be easier for claims to meet the new, lower threshold created by the Court in effectively altering the “substantial burden” test.
As Justice Ginsburg pointed out, rather than having to show that a person’s, or corporation’s, practice of religion has been burdened, they simply need to show that a law is “incompatible with” the person’s religious beliefs. Additionally, it seems that a wide array of regulations, conceivably including minimum wage laws, could be threatened by Alito’s reliance on the idea that having the government pay for the cost of implementing a regulation is less restrictive than having the company bear the cost of a regulation it objects to.
It is also not clear that the decision will remain “limited” to the 90 percent of American companies that qualify as closely held, which employ more than half of the nation’s workforce. The Court explicitly acknowledged the possibility that publicly traded corporations could raise such claims, but argued that it would be “unlikely.” But in this new world in which corporate religious claims can be made against government regulation, what is to prevent the CEO or board of a publicly traded organization from finding religion with regard to, say, greenhouse gas emissions?
The Evangelical Declaration on Global Warming, promoted by the anti-environmentalist Cornwall Alliance, declares as a matter of faith that earth’s ecosystem is not fragile and that efforts to reduce global warming, like regulating the emission of carbon dioxide, are not only “fruitless” and “harmful” but would discourage economic growth and therefore violate Biblical requirements to protect the poor from harm.
Justice Alito’s opinion rejects Justice Ginsburg’s characterization of the ruling’s “startling breadth.” But it is undeniable that the Court majority has opened the door to owners of for-profit corporations making an array of claims under the Religious Freedom Restoration Act.
Justice Ginsburg writes in her dissent, “Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.” For today’s right-wing leaders, who claim religious grounding for just about every aspect of their political ideology, there aren’t many forms of regulation that would be off-limits.