The "minefield" that Supreme Court Justice Ruth Bader Ginsburg warned about in the 2014 Hobby Lobby case "has now detonated," columnist Michael Hiltzik writes in a Los Angeles Times opinion piece.
Hiltzik discusses a recent decision in which U.S. District Judge Sean Cox "ruled that a local funeral home was well within its rights to fire a transgender employee because its owner had a religious belief that gender transition violated biblical teachings." Hiltzik states, "Cox's ruling puts the lie to Justice Samuel Alito's denial, in his majority opinion in Hobby Lobby, that the ruling would provide a shield for a wide range of discriminatory practices by allowing them to masquerade as religious scruples."
In contrast, Ginsburg in her dissent to the Hobby Lobby decision said it left "'little doubt' that religious claims would proliferate, because the court's expansion of religious freedom to corporations 'invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.'" Further, according to Hiltzik, Ginsburg questioned the breadth of the decision and "cited court precedents holding that 'accommodations to religious beliefs or observances … must not significantly impinge on the interests of third parties.'"
"As it happens, the case before Cox involves all those points," Hiltzik writes. He explains that in the case, a funeral home employee was fired after "she informed her employer that she would transition to her female identity." The federal Equal Employment Opportunity Commission sued the funeral home on the employee's behalf.
According to Hiltzik, the lawsuit at first "resembled an ordinary sex-discrimination matter," with the employer citing its dress code that "distinguish[es] between men's and women's working garb." However, he notes that the funeral home soon "added a religious dimension, citing the federal Religious Freedom Restoration Act [PL 103-141], the same statute underlying the Hobby Lobby case." Hiltzik writes, "That legislation was designed to give people a pass on generally applicable laws if they could show that the burdens imposed on their beliefs outweighed the public's interest."
According to court filings, the funeral home owner "'sincerely believes' that the 'Bible teaches that a person's sex … is an immutable God-given gift,'" Hiltzik writes. Further, the owner "believes ... that he would be 'violating God's commands if (he) were to permit one of the funeral directors to deny their sex. ... He would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.'"
Hiltzik states, "The problems Ginsburg identified are obvious from this narrative." For example, he explains that "there's no way of determining if Rost's beliefs are genuine or even religious." Moreover, Hiltzik notes that the owner's "assertions that sex is 'immutable' and that [the employee] was taking advantage of a 'changeable social construct' are contradicted by medical science." Further, he points out that "the accommodation Cox is granting plainly impinges on the interest of a third party -- [the employee], who has lost her job."
In an amicus brief in the funeral home case, the American Civil Liberties Union (ACLU) "underscored the concerns that Ginsburg raised in Hobby Lobby," Hiltzik writes. According to the ACLU, "If religious motivation exempted businesses from anti-discrimination laws, our government would be powerless to enforce those laws." For example, the brief stated that among other ramifications, "business owners could refuse service to people of color, on the ground that their religious beliefs forbid racial integration" and "[e]mployers could refuse to hire women or pay them less than men, because their religious beliefs require women to remain at home." In short, ACLU wrote that "[a]ll civil rights laws would be vulnerable to such claims where the discrimination was motivated by religion."
Hiltzik concludes, "Hobby Lobby, Ginsburg warned, was 'a decision of startling breadth.' How broad is just now becoming clear" (Hiltzik, Los Angeles Times, 8/19).
