Lisa Keen | The Keen Files
June is the final month of the U.S. Supreme Court’s current session and, while anticipation is not nearly so great this year for the LGBT community as it was last year, there is some concern in the air.
Last year, the wait was about marriage: whether the Supreme Court would declare the Defense of Marriage Act and California’s ban on same-sex couples marrying to be unconstitutional. It declared DOMA unconstitutional and, on a legal technicality, it allowed a lower court decision striking California’s Proposition 8 to stand.
This year, anxiety surrounds two consolidated cases in which employers are seeking the right to discriminate against employees in the provision of health benefits based on the company owner’s personal religious beliefs. It is the type of conflict — religious beliefs versus non-discrimination laws — that has arisen time and again in recent years by employers seeking to discriminate against LGBT people.
“Sebelius v. Hobby Lobby Stores” and “Conestoga Wood v. HHS” are lawsuits brought by the owners of for-profit commercial enterprises — a furniture maker, an arts-and-craft store, and a bookstore (the latter selling Christian-oriented books). The owners of these companies object to a requirement by the Affordable Care Act that employers’ health plans include coverage for contraception. They say they’re not trying to stop the use of contraception; they just don’t want to be involved in funding it.
The Family Research Council submitted a brief in support of the Hobby Lobby employers, arguing that “commercial activity does not preclude or excuse religious observance and often can be a means of exercising religion.”
But an article on salon.com reported the Hobby Lobby and Conestoga owners are involved in political efforts to stop the use of contraception, as well as marriage for same-sex couples, through its donations to the National Christian Charitable Foundation, which funnels millions of dollars into organizations such as the Alliance Defending Freedom which has defended many state bans on same-sex marriage.
LGBT legal activists seek two major concerns with a ruling in favor of the employers in these cases. One is that it could open the door for employers to seek exemptions from providing coverage for other health benefits, such as coverage for the same-sex spouses or partners of employees, reproductive services for lesbian couples, testing and treatment for men at risk of HIV infection, and transgender treatment for people with gender dysphoria. And the other is that employers and individuals might seek exemptions to other laws, such as laws prohibiting discrimination based on sexual orientation and gender identity.
“Given these implications, the Hobby Lobby case is indeed another major moment for the LGBT community,” wrote Ashland Johnson, policy counsel for National Center for Lesbian Rights (NCLR), in an article for NCLR’s website. “The Supreme Court’s resolution of the case will directly affect our reproductive rights and other health care needs. Equally concerning, it could result in devastating exceptions to protections for LGBT people at the state and local level, jeopardizing literally decades of advocacy and progress.”
Following oral argument in March, Jenny Pizer, Lambda Legal’s director of Law and Public Policy, expressed concern that the court may give certain for-profit companies — those closely held by families or small groups of people (also known as S-corporations) — the ability to claim the same sort of religious exemption to ACA that is currently afforded to religious institutions.
“If they say any for-profit can claim religious [exemptions], obviously, that’s very bad,” Pizer said in March. “If they say only S-corporations can have a religious exemption, that’s less bad, but it’s still bad. There are an awful lot of family-owned businesses.”
Adding to that worry: On May 5, the Supreme Court surprised some when it ruled in favor of allowing a town board in Greece, New York to open its meetings with a prayer that is specific to a particular religion, usually Christianity.
“To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact,” wrote Justice Anthony Kennedy for a 5 to 4 majority in Town of Greece v. Galloway.
Other decisions LGBT legal activists will likely be watching for in the next few weeks include:
National Labor Relations Board v. Noel Canning. The case involves the president’s right to make appointments during congresssional recess – a tool President Obama has used to get a number of openly gay people into positions. He used it to get lesbian legal activist Chai Feldblum cleared onto the Equal Emloyment Opportunity Commission and to install gay nominee Richard Sorian as assistant secretary for public affairs at the Department of Health and Human Services.
McCullen v. Coakley. The Gay & Lesbian Advocates & Defenders, the National Gay and Lesbian Task Force, and NCLR all signed onto a friend-of-the-court brief in support of a Massachusetts law that attempts to protect the safety of women seeking abortions by creating a 35-foot setback for any protest outside such facilities.
Riley v. California. No LGBT group filed a brief in this case, but the gay-friendly American Library Association (ALA) did, arguing that police should not have a right to search a person’s smartphone contents without a warrant, incident to an arrest. Noting that smartphone users store sensitive personal data about themselves and their interests on their smartphones, the ALA brief said, “Smartphones are personal computers in every sense of the word: if every arrest of a person with a smartphone … allows police officers to rummage painstakingly and intrusively through the contents of personal libraries, the loss of constitutionally protected privacy will be great indeed.”
—Lisa Keen is an award-winning journalist who spent 18 years as editor of the Washington Blade. See more news from Keen and other select veteran gay journalists at keennewsservice.com.