The Hobby Lobby Decision is Already a Problem

by L. Turner

Welp, that was fast. That whole Hobby Lobby decision is already prompting religious leaders to push for changes to a coming executive order enforcing the dead-in-the-water Employment Non-Discrimination Act (ENDA) on federal contractors. The act is meant to ban employers from discriminating on the basis of sexuality, and though it passed the Senate, the Republican-dominated House has refused to take it up.

Setting aside how ridiculous it is that the U.S. doesn't explicitly protect LGBT individuals against employer discrimination, here's what happened: As a result of Congressional inaction, President Obama's going rogue and taking executive action to enforce the same rules on the small slice of companies he can control. That means federal contractors, which makes sense: You don't really want the federal government paying discriminatory companies to complete work on its behalf.

The Act, which would've applied to all employers nationwide, originally included a provision that explicitly said it didn't apply to religious institutions like churches, religious service groups and religious newspapers (no, that doesn't include for-profit corporations that profess a given religious view, like Hobby Lobby, whose inclusion in such a list would've seemed absurd before this week). But now no one's sure whether Obama will include a similar provision in the executive order he signs.

As a result, religious leaders — including ones that have been friendly to Obama in the past — are asking him to include an exemption in the executive order, The Atlantic reports. The letter talks mainly about religious charitable organizations that would be excluded from competing for government contracts if the order doesn't include an exemption. These are organizations that supposedly don't hire LGBT individuals because they are "religious organizations that seek to serve in accordance with their faith and values."

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Michael Wear, who actually worked in the Obama White House, organized the letter, which he said wasn't meant to be "antagonistic." Wear told The Atlantic that after Hobby Lobby, "the administration does have a decision to make whether they want to recalibrate their approach to some of these issues."

That's because Hobby Lobby is forcing a ridiculous Solomon's choice between respecting the religious viewpoints of groups with hiring power, bizarrely including for-profit companies, and respecting the rights of real people. The decision implies that a woman's right to contraceptive care isn't important enough to protect, since the Court sided with Hobby Lobby despite basically suggesting that "more important" issues, like vaccinations, might yield a different result from the bench.

The problem with the Court's convoluted reasoning is that no one — least of all the government — should be picking and choosing which health issues are more important that others, or which religious views are most worth protecting. Ultimately, using the Court's Hobby Lobby logic, you end up privileging certain rights and beliefs over others.

Prior to Hobby Lobby, that distinction was generally clearer: As a legal principle, you could basically exercise your own rights so long as they didn't impact others' expressions of their rights, as Hero Justice Ruth Bader Ginsburg noted in her dissenting opinion. But that was before, you know, corporations became people.

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Still, like it or not, sometimes governing gets us into these thorny issues. That's why the Senate wrote in an exception in ENDA that exempted religious non-profits in the first place. In fact, given the whole democratic process thing, these issues seem to work themselves out just fine in Congress, no "incidentally" harmful Supreme Court decisions required.

In the context of politics, the religious groups' appeal makes sense: They want to be heard, listened to and considered in what's basically a unilateral decision by Obama. But ENDA is different from the president's executive order, which applies only to federal contractors and is thus a much narrower action. The question before Obama boils down to this: Should the federal government essentially hire organizations that refuse to hire LGBT employees on the basis of their sexual orientation? Wouldn't that make the federal government complicit in discrimination, no matter what religious doctrine that discrimination is based on?