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What the Supreme Court's Birth Control Case Means for Anti-Discrimination Laws

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Those who care about anti-discrimination laws in general, and the rights of LGBT individuals in particular, have much to be concerned about Monday's ruling by the Supreme Court in Burwell v. Hobby Lobby.

The Hobby Lobby corporation, along with Conestoga Wood in a consolidated case, challenged a regulation by the Department of Health and Human Services issued under the Affordable Care Act requiring most employers of more than 50 employees to provide workers with health insurance coverage that includes free access to certain contraceptives. The corporate plaintiffs claimed that the regulation violated their rights to religious liberty under the Religious Freedom Restoration Act (RFRA) because its owners have religious-based objections to the use of some of the contraceptives in question.

RFRA requires the federal government to show the existence of a compelling state interest to enforce a generally applicable law or regulation that burdens the religious freedoms of "a person." The Court in Hobby Lobby concluded that for-profit corporations are persons within the meaning of the statute and that they therefore can have their rights to religious liberty impaired. The Court then held that the application of the contraceptive regulation to the corporate plaintiffs violated their religious rights under RFRA.

The Court's ruling is reminiscent of its highly controversial decision four years ago in Citizens United v. Federal Elections Commission, holding that corporations have constitutionally protected rights to spend monies from their general treasuries to influence elections. Hobby Lobby constitutes a similar radical departure from pre-existing case law -- never before has the Supreme Court come close to suggesting that for-profit corporations have the capacity, much less a constitutional or statutory right, to exercise religion.

The Court's decision represents a threat to the ability of anti-discrimination laws to prevent commercial enterprises owned or managed by religious owners to discriminate on the basis of many currently protected traits, including sexual orientation in some jurisdictions. Although the Court attempted to cabin its radical departure from earlier cases by claiming that its holding is limited to the issue of access to contraceptives, there would seem to be little distinction between religious-based objections to contraceptives and religious-based objections, for example, to marriage by same-sex couples. Hobby Lobby makes it more likely that some businesses will claim that their religious principles are violated when they are required to provide goods, services, or benefits to married same-sex couples (or even to LGBT individuals).

The Hobby Lobby ruling eviscerates the well-established distinction in anti-discrimination law between, on the one hand, the special solicitude that is owed to not-for-profit religious organizations to carry out their religious objectives without having to abide by anti-discrimination mandates, and, on the other, the demand that for-profit corporations comply with laws that are meant to address the discrimination that unfortunately has been part of our nation's history. Until the Court's ruling on Monday, the reason for this distinction was clear: the objective of not-for profit religious organizations is to pursue religious missions and activities; the purpose of corporations is to make money.

We are told by those who support the religious rights of corporations that the recognition of such rights does not represent a threat to anti-discrimnation laws. But those who follow LGBT issues know otherwise. Earlier this year, the Arizona legislature enacted a law granting businesses religious-based exemptions from the application of anti-discrimination laws.

If the Arizona measure had not been vetoed by the governor, it would have allowed corporations to refuse to serve or hire members of statutorily protected classes as long as they did so for religious reasons. Although it was clear to everyone that the push for this law was driven by opposition to LGBT rights, its scope went far beyond issues of sexual orientation. The law would have granted broad legal immunity to religious-based discrimination on the basis of not only sexual orientation, but also race, national origin, religion, and sex. For that reason, many concerned groups and individuals, inside and outside of the state, voiced their strong opposition to the law.

While the Arizona law never went into effect, Mississippi enacted a similar provision in April. Unfortunately, the Court's ruling comes as opponents of LGBT rights are using the growing acceptance of marriage equality across the country to justify turning back the clock on civil rights by trying to provide secular businesses, employers, and landlords with legal immunity to discriminate as long as they do so based on religious grounds.

The Court's holding in Hobby Lobby that for-profit corporations have the same statutory rights under federal law to religious exemptions from generally applicable laws as religious organizations and human beings will undoubtedly lead to additional proposals to limit the scope of anti-discrimination laws elsewhere. It is imperative that legislators across the country reject these efforts.