By Bill Blum
Don’t be misled by pundits proclaiming victory in the battle against religious bigotry after Arizona Gov. Jan Brewer’s veto of SB 1062, her state’s gay discrimination bill. The battle in fact rages on, both in a host of similar measures proposed in states across the country and in a set of potentially landmark cases pending before the United States Supreme Court that promise not only to revive faith-based discrimination but to raise the doctrine of corporate personhood to new heights.
From a legal standpoint, today’s religious bigotry draws its support from a heretofore obscure federal statute known as the Religious Freedom Restoration Act of 1993, a well-intentioned piece of legislation designed to safeguard religious practices that has been skillfully and cynically subverted by some of the most extreme elements of the American right.
Introduced by New York Sen. Chuck Schumer back when he was a member of the House and co-sponsored by 170 other representatives, the act was signed into law by President Bill Clinton. Its purpose was to counter a 1990 Supreme Court decision (Employment Division v. Smith ) written by Justice Antonin Scalia that had upheld the firing of two Native American drug rehabilitation counselors for the sacramental use of peyote during a church ceremony.
As originally passed, the act prevented government at all levels from “substantially” interfering with “a person’s” First Amendment right to the free exercise of religion unless such inference passed what the courts call “strict scrutiny,” and the interference was necessary to advance “a compelling governmental interest.” Since it is very difficult for a law to survive strict scrutiny, the act was regarded at the time as a victory for civil liberties, especially for members of minority groups like Native Americans.
But then things began to change. In 1997, in a ruling (City of Boerne v. Flores) drafted by Justice Anthony Kennedy, the Supreme Court held that Congress had exceeded its constitutional authority by extending the act to state and local governments. In response to Kennedy’s opinion, religious conservatives united to form a new “liberty” movement, and succeeded in securing passage of local versions of the act in 18 states. Arizona joined the movement, adopting its initial restoration act in 1999, which SB 1062—introduced earlier this year—sought to amend.
Meanwhile, back at the federal level where the original restoration act still applied, the law became by the turn of the century an established vehicle not only for protecting legitimate and long-standing religious rites but also occasionally for crackpots and zealots who sought to use it for purposes its sponsors never imagined. In one particularly comic case brought before the United States Tax Court, a married couple cited the act, objecting to the requirement that they list the Social Security numbers of their dependent children on their annual returns because the numbers represented “the mark of the beast” warned against in the Bible in Revelation 13:16-18. The objection failed.
With the passage of the Affordable Care Act, however, the zealots have completely taken over, driven to hysteria by what they termed the ACA’s “contraception mandate”—the requirement that all new health insurance plans cover certain preventive services and screenings, including birth control, without cost sharing. According to the National Women’s Law Center, more than 100 lawsuits have been filed in federal courts challenging the mandate as applied to employer-sponsored plans.
The best known of such cases was brought by Oklahoma-based Hobby Lobby Stores, Inc., an arts and crafts chain with more than 500 retail outlets and nearly 13,000 employees. The company is run by the billionaire Green family, a clan of self-styled Christian patriots who, as journalist Sarah Posner has written in The American Prospect, believe they “serve God through their business endeavors.”
Relying on the Supreme Court’s 2010 Citizens United case, Hobby Lobby’s attorneys contended in their suit that despite the clear wording of the Religious Freedom Restoration Act limiting its protections to persons, corporations should also be considered persons under the Act, imbued with the same First Amendment rights as anyone else to the free exercise of religion. Those rights were violated by the ACA’s contraception mandate, the complaint alleged, which forced Hobby Lobby to violate its religious beliefs by supplying birth control to its workers as part of their health insurance.
Incredibly, in an opinion issued in June, the 10th U.S. Circuit Court of Appeals not only endorsed Hobby Lobby’s corporate personhood argument, but also held that the contraception mandate could not withstand the strict-scrutiny analysis required by the Restoration Act. The case is now slated for oral argument before the Supreme Court on March 25, along with another decision on the same issue from the federal 6th Circuit.
Four days before the Hobby Lobby argument, at its March 21 closed-door conference, the Supreme Court will also consider whether to accept review of a gay-discrimination appeal from New Mexico—Elane Photography v. Willock. In that case, in which a commercial photography business had refused to take pictures at a lesbian commitment ceremony, the state Supreme Court held that notwithstanding the strict scrutiny required under New Mexico’s restoration act, a company that offers its services to the public is subject to state anti-discrimination laws “and must serve same-sex couples on the same basis that it serves opposite-sex couples.”
Anyone who doubts the connection between the Hobby Lobby and Elane Photography cases and Arizona’s SB 1062 need only read the literature produced by the Center for Arizona Policy, an anti-abortion “pro-family” organization that lobbied to promote the Arizona bill. As the center’s literature instructs, SB 1062 was designed to follow the 10th Circuit’s Hobby Lobby ruling by explicitly amending the Arizona Religious Freedom Restoration Act to confer personhood status on corporations, and to avoid the result reached in the Elane Photography case by amending the Arizona act to allow businesses to use it as a defense in state anti-discrimination lawsuits brought by private parties, including, of course, gays and lesbians.
Although Brewer’s veto of SB 1062—made more out of shame and fear of financial repercussions than moral principle—has dealt the cause of religious bigotry a setback, the setback is only temporary. Similar legislation that would institutionalize public discrimination against gays and lesbians under the guise of religious liberty remains pending in at least 12 states. Though such bills reportedly have stalled, they will require only a favorable decision or two from the Supreme Court to be revamped and reignited.