Constitution Daily

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Discrimination, Inc.

February 28, 2014 by David H. Gans


David H. Gans from the Constitutional Accountability Center argues in this commentary that the recent controversy over Arizona’s proposed Religious Freedom law changes are linked to challenges to the Affordable Care Act.


samesex0531twoiconsWhat does anti-LGBT legislation in Arizona and Kansas have to do with a pair of Supreme Court cases out of Oklahoma and Pennsylvania challenging the Affordable Care Act?  Quite a lot. The efforts to give businesses a right to deny women access to contraceptive coverage and to legalize discrimination against gay men and lesbians are joined at the hip.


This week, all eyes were on Arizona Governor Jan Brewer as she considered whether to veto a bill that would give businesses in that state a legal right to refuse to serve gay men and lesbians.  Her veto and affirmation of the principle of equality for all are worthy of celebration, but the matter is far from over.  As other bills are working their way through a number of state legislatures, the issue at the heart of these pieces of discriminatory legislation will be confronted by the Supreme Court next month. For the first time in history, the Court will consider whether secular businesses are entitled to a religious exemption from federal laws that protect the rights of their employees.  That’s the big question at the center of blockbuster challenges brought by Hobby Lobby Stores and Conestoga Wood—an arts and crafts chain and a wood manufacturer—to a key provision of Obamacare that requires employer group health insurance plans to provide contraceptive coverage.    The Supreme Court has never given business corporations the right to exercise religion.  It should not start now.


Indeed, in the run up to oral argument, we have had a disturbing illustration of just what it would mean to recognize that corporations have the same rights as individuals to exercise religion.  Across the nation, conservatives are seeking to enact new legislation that would recognize religious rights for secular businesses and their employees and allow them to refuse to serve gay men and lesbians on religious grounds. The theory behind Hobby Lobby’s and Conestoga Wood’s challenge to the contraceptive coverage requirement and proposed state legislation that would give businesses a license to discriminate against gay men and lesbians is the same: that secular businesses can exercise religion and should be exempt from laws that violate their business owners’ religious beliefs.


This should come as no surprise.  After all, Alliance Defending Freedom, which is representing Conestoga Wood in the Supreme Court, has been involved in drafting the Arizona legislation that would have given business owners a license to discriminate against gay and lesbian customers on religious grounds.  Further, the Becket Fund, which is representing Hobby Lobby at the Supreme Court, has defended the rights of a photography business to refuse to take wedding pictures for a gay and lesbian couple in New Mexico in another hugely important case that could soon be accepted for review by the Supreme Court.  This case and others like it have provided the impetus for the wave of anti-LGBT legislation we are now seeing.  The Hobby Lobby case is the next wave in the conservative attack on civil rights guarantees that protect all Americans from discrimination.  If it succeeds at the Supreme Court, we are sure to see a wave of claims that businesses should be exempt from civil rights protections.


Both from the right and left, legislative leaders, business people and concerned citizens have denounced these efforts to legalize discrimination against gay men and lesbians and force them into a second-class status.  In Arizona, a full court press was instrumental in convincing Governor Brewer to  veto the bill.   Civil rights groups, joined by Arizona’s Senators, Republicans John McCain and Jeff Flake, as well as the CEOs of Marriott, American Airlines, US Airways, Delta Airlines and Apple, powerfully made the case that Arizona’s bill would legalize discrimination and deal a staggering blow to the business community.  Similar arguments were decisive in blocking a similar bill in Kansas.  Even in the reddest of red states, conservatives are recognizing that business owners should not be entitled to impose their beliefs on customers and deny them basic rights to equal dignity.


Proponents of Hobby Lobby’s challenge to the federal contraceptive coverage requirement and this new spate of anti-gay state legislation have argued that they are simply attempting to preserve the constitutional guarantee of the free exercise of religion, but the reality is that right to the free exercise of religion has never been a right that secular businesses claimed to possess.  It has never been part of religious liberty for a business to foist its owner’s religious views on his employees or customers.  As the raft of new anti-gay legislation powerfully shows, arming businesses with religious rights would create a dangerous precedent that, in the words of one Republican mayor and Arizona gubernatorial candidate, would “give carte blanche for anybody to discriminate under the guise of religion.”  As the Justices look forward to oral argument in the contraceptive cases next month, they may want to remind themselves that no business should have a license to discriminate.


David H. Gans is the Director of Civil Rights, Human Rights, and Citizenship Program at Constitutional Accountability Center. He is the author of Can Corporations Pray? and co-author of CAC’s amicus brief in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.


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