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In Wreckage Of Supreme Court Decision, Gay Rights Groups See Hope

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WASHINGTON -- Monday’s Supreme Court ruling on religious freedom was a blow to progressives, but leading lesbian, gay, bisexual and transgender rights groups see a silver lining when it comes to workplace protections.

In a limited manner, the high court ruled that for-profit companies can claim a religious exemption to the Obamacare requirement that they provide health insurance coverage for birth control. LGBT rights groups have been waiting for this ruling to gauge how, and if, President Barack Obama will proceed with an executive order banning job discrimination based on sexual orientation and gender identity by federal contractors.

If the Supreme Court had ruled broadly in favor of corporations being able to claim religious exemptions to certain laws, for example, that could have opened the door to companies citing religious beliefs as grounds for firing or not hiring LGBT people. But that's not what happened on Monday.

"While the court today expanded corporate power, it also made really clear that this is a narrow decision and that it will not operate as a shield from other kind of discrimination laws," said Rose Saxe, a senior staff attorney at the American Civil Liberties Union's LGBT and AIDS Projects.

"I don't think this decision itself is likely to really bolster or support demands for exemptions or accommodations to allow people to violate other generally applicable laws protecting LGBT people from discrimination," she said.

“Nothing in the decision impacts the executive order,” said Fred Sainz, vice president for communications and marketing for the Human Rights Campaign. “In fact, the court explicitly said the decision provides no shield to discrimination in hiring cloaked as religious practice. The president should issue it without any further religious exemption.”

A White House spokesman offered no details on whether the court’s ruling affects the religious exemption in the president’s forthcoming executive order on LGBT discrimination, which the White House announced last week without providing a timeline. Typically, executive orders carry the same language when it comes to federal contractors: Certain religious contractors and religious companies are permitted to discriminate if they are choosing individuals of their religion to perform the work. They can’t discriminate based on sex or race, for example, but they can say they are hiring only members of their faith.

LGBT groups are pointing to two parts of the Supreme Court’s decision as reasons to be optimistic that the ruling will not open the door to workplace discrimination.

First, Justice Samuel Alito acknowledged in his opinion that some people were worried that allowing an exemption for Hobby Lobby could lead to discrimination cloaked as religious practice.

"Our decision today provides no such shield," he wrote. "The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."

Second, Justice Anthony Kennedy, in his concurring opinion, said the ruling "does not have the breadth and sweep ascribed to it by the respectful and powerful dissent."

In that dissent, Justice Ruth Bader Ginsburg made it clear that she was not comfortable with the majority's assurances that the Hobby Lobby decision would not spread into other areas.

Ginsburg noted that in New Mexico, for instance, a business called Elane Photography refused to photograph a lesbian couple's commitment ceremony based on the owners' religious beliefs.

"[H]ow does the Court divine what religious beliefs are worthy of accommodation, and which are not?" she asked.

Some observers agreed with Ginsburg that there is reason for concern. "I think what this decision does generally, as a matter of federal law, is to suggest that there are now probably a lot of claims that can be made against federal laws that have some sort of exemptions already," said Douglas NeJaime, a law professor at UC Irvine School of Law and the visiting faculty chair at the Williams Institute, which researches sexual orientation and gender identity law and public policy.

Supreme Court justices who ruled in favor of the expanded religious exemption noted that the Affordable Care Act already gives some exemptions to religiously affiliated groups, so it should be acceptable to expand the exemption to certain corporations. In that same vein, NeJaime noted that since anti-discrimination laws already have some sort of religious exemption, they could now be more difficult to craft going forward.

"The court's decision will fuel arguments that [say], 'Look, if you've exempted these other groups, it shows it's not the least restrictive means and you can exempt us.' That's Justice Ginsburg's fear," he said.

Beyond Obama’s forthcoming executive order, which would apply only to employees of federal contractors, there is also legislation pending in Congress that would ban LGBT job discrimination by all companies nationwide that have at least 15 employees. That measure, which has stalled in the House, has a much broader religious exemption than the one typically used in executive orders. It’s unclear whether the Supreme Court’s ruling on religious freedom would affect that bill’s exemption.

Requests for comment from the sponsors of that legislation, the Employment Non-Discrimination Act, were not returned.

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