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    Ann Rostow: Utah King To Me

    By Ann Rostow

    Utah King To Me!

    My last column ended with a bang. No sooner had I filed the tedious accounting of GLBT civil rights news dribs and drabs than came news of marriage rights being granted by a federal judge in Indiana. With the help of the intrepid editors at the Bay Times, we added a little editorial note, and then five minutes later, Kaboom! A split 2-1 panel of the U.S. Court of Appeals for the Tenth Circuit ruled in our favor in the Utah marriage case, the first of its kind to make its way through the federal appellate courts, one rung down from You Know Who. (I am not counting the anomalous Prop 8 ruling in the Ninth Circuit.)

    In the two weeks that followed, we’ve witnessed the now familiar chaos of a marriage window in Hoosierland, a window that was slowly shut by successive legal maneuvers. You can’t get married in Indiana at the moment, but quite a few couples managed to tie the knot before the opening closed. Indiana is part of the Seventh Circuit, so this case will join, or let’s say accompany, Wisconsin on its trip up the judicial ladder.

    Also, let’s note that the Oklahoma marriage case was argued only a week after the Utah case, and before the same three-judge panel that just ruled in our favor. So where is that decision, we may ask? I vaguely recall that the Oklahoma case has some procedural complications, so maybe that accounts for the delay. But I actually suspect that the Tenth Circuit is waiting for me to file this column. Then, after about ten minutes, the panel will rub their hands together. “She’s all finished! Release it now!”

    Alito Makes Scalia Look Good

    Meanwhile, the main story for this column has to be the Supreme Court’s Hobby Lobby opinion, and the related move by the court to issue an injunction in favor of the conservative Wheaton College.

    You know, readers. I’ve been following this case. I’ve followed a lot of cases that attempt to resolve the tension between religious freedom and civil rights. But down comes this major opinion at a time when I am on vacation, moving seamlessly between grandchildren playtime and drunken partying with their parents.

    Oh! I’ll just read that Hobby Lobby opinion. But wait. Here’s a naked four-year-old who wants to go on a jet ski! And I have to tell a story. And we need to find a juice box. And now there are tears! Accusations! She scratched me on purpose! Yet there is no mark. Where are their parents?

    And later when the kids are sleeping. Who wants a cherry margarita? Who’s going star gazing on the lake? Here’s a giant bottle of wine being passed around the fire. Does anyone want to stop to read the Supreme Court opinion? I think not.

    But I wasn’t worried. I’ve covered this area of law for twenty years. I’m no lawyer, but certainly, once vacation is done, I can read an opinion and some commentary and form my own trenchant analysis, right?


    As I write to you, I have indeed read the opinion and the dissent, along with a bunch of other articles. It’s the job of a Supreme Court analyst to come up with the implications, superficial and profound, of every decision. But although I’ve often tried to be one, I’m not really a Supreme Court analyst, so I can tell you this: this opinion is an enigma. We have no way to know whether the decision is, in Justice Kennedy’s opinion, a narrow interpretation of a federal statute. Or whether, in Justice Ginsburg’s opinion, it’s a break down in First Amendment jurisprudence. We just don’t know. It could be either.

    The opinion (which I’ll get to) was written by the man that I consider to be one of the very worst justices in High Court history. Samuel Alito is not just conservative; he operates outside the restraints of constitutional law itself. He makes stuff up. He twists stuff. He simply ignores important legal tests. He picks a decision and then backs it up with whatever complete b.s. sounds like it might make sense. He has done this before (check out his dissent in the Hastings Law School case), he has done it here, and he will no doubt do it again.

    So let’s look at the Hobby Lobby case. It’s complicated to the max. As you know, Hobby Lobby is a private for-profit company that is run by conservative Christians. The owners did not want to fund insurance for four types of contraception that they considered were virtually the same as abortion: Plan B, IUDs, and two other things. Under Obamacare, employers must provide full coverage for women’s health. Religious employers, and we’re talking churches and so forth, can avoid the problem of providing these contraceptives by filling out a form and ordering a third party to offer the insurance. That way, the employees get the same benefits as any other woman, but the religious group can avoid paying for the insurance directly.

    So, we’re looking at two main issues: Should a for-profit corporation be treated like a church group simply because the owners are religious? After all, the employees are presumably just regular people, right? Second, you’re probably thinking that we’re also talking about the First Amendment guarantees of freedom of religious expression. To what extent can the government stand between you and your experience of faith?

    But here’s the thing. Justice Alito ignored the First Amendment. There’s a 1993 federal law that says the government cannot trespass on expressions of faith absent a compelling federal interest. If they so do, they also have to prove that there was no less intrusive manner of serving that interest. This law is the much ballyhooed federal Religious Freedom Restoration Act, a law that was actually passed to clarify, and in some ways strengthen, the First Amendment’s guarantee that the government will not favor or intervene in religious expression. In other words, the federal law serves the First Amendment, but it does not replace it. And the Supreme Court carries vast First Amendment case law that should, in theory, govern this case.

    Astonishingly, because we’re dealing with Justice Outside the Box Alito, the Hobby Lobby complaint was analyzed under the federal statute, not under Constitutional law. Hey! We don’t have to be lawyers to know that federal statutes, all statutes, must measure up to the Constitution, right? That’s the whole damned purpose of the Supreme Court! But this was not done! Instead, Alito looked at the language of the RFRA (and its progeny) and determined, first that this law somehow stands on its own outside the ambit of the First Amendment. (WTF?). Then, he ruled that a private for-profit company could have a religious conviction for purposes of the law, and third, he decided that the government had not selected the least intrusive method for serving its interest in women’s health.

    I’m not getting into the origins of the RFRA, but just trust me. This law was passed in order to codify aspects of First Amendment law, not to trump established case law. The RFRA should be interpreted in the context of the Constitution, not on its own. To do otherwise is typical Alito, and his indifference to established constitutional law is unforgivable in a justice.

    Second, is there a legal difference between a corporation, even a corporation run by Christians, and a church organization? Hello! Do we even have to ask that question? Yet Alito had no problem conflating a for-profit group with a religious organization. Why, he wondered blithely, should participation in the free market negate the owners’ faith-based rights? (Earth to Alito: because you can’t have it both ways! You can’t get the benefits of separating your personal finances from your corporation and then turn around and invoke your personal beliefs to evade federal law.) But following his skewed thinking, why shouldn’t the majority owner of a traded company be allowed to dictate religious terms? Couldn’t we see major corporations sidestepping all sorts of antidiscrimination laws with a wave of the religion card? If it’s up to Alito, no problem!

    Finally, he turned to the question of whether the government had used the least intrusive means of enforcing its insurance policy. Hey, Alito said. You’ve got all these religious groups who can fill out a form and get someone else to provide contraceptive insurance. Surely this same accommodation can be made for Hobby Lobby and other “closely held” private companies who hold these “sincere” beliefs.

    Now, bear with me. Forget the fact that women who work for seemingly secular companies should not be obliged to jump through strange insurance hoops in order to get standard health care. But there’s also a question of whether this “easy alternative” will even be available. Why? Because a bunch of the aforementioned religious groups have decided that even filling out the damn form is a violation of their freedom of religion, or sincerely held beliefs, or whatever b.s. And just a few days after Hobby Lobby, the High Court issued an injunction that allows a Christian college, Wheaton, to skip the form and just write a letter to the government.

    Personally, I think this Wheaton decision, which got a ton of media attention for a range of legal reasons, is a red herring. Because it’s more of the same. The insurance. The form. These people won’t stop. Anything and everything will be a violation of their beliefs until someone, or some court, steps up and points out that one of our most fundamental principles as a nation is that freedom of religion does not extend to imposing your religious beliefs on other Americans.

    Will Hobby Lobby Hurt Us?

    Even after all this, I still can’t predict how this opinion will play out. On the surface, we can imagine nightmare scenarios. And even though Alito pretends to operate outside the First Amendment, we know this opinion will have an impact on constitutional law. Could a company fire a gay person or ignore a legal marriage based on Hobby Lobby? Maybe, maybe not.

    On the other hand, is it too weird? Has Alito gone too far? Will future courts be able to sidestep Hobby Lobby, noting that it was confined to a niche aspect of health care or that it ignored First Amendment precedent? Will it just create a murky area of law, a swamp to be drained by a future High Court ruling? Will Justice Alito’s comment that the opinion doesn’t provide a loophole for avoiding laws against racial discrimination extend to us? Note that our champion Justice Kennedy wrote his own concurring opinion, emphasizing the limited nature of the ruling.

    And what of the numerous federal court rulings that have not only recognized our right to marry, but have also done so with stirring rhetoric, pulling gay men and lesbians into a full constitutional embrace; equal protection, the fundamental right to marry, even the status of a protected minority? Can this asinine opinion undermine all that progress? Would the same federal courts that have heralded our relationships and our place in American society turn around and give the thumbs up to some right wing company that wants to dismiss our relationships based on “sincerely held religious beliefs?” I hope not. But that said, you just never know how High Court opinions will be greeted once they hit the ground running in the federal judiciary.

    Finally, as I wind up this analysis, please note that Lambda Legal has joined the National Center for Lesbian Rights, the American Civil Liberties Union, the Gay and Lesbian Advocates and Defenders, and the Transgender Law Center, in opposing the Employment Nondiscrimination Act. Among ENDA’s many flaws, its religious loopholes would open the door for sexual orientation to stand alone as an exception to antidiscrimination laws.

    We might not know exactly how the Hobby Lobby opinion will be interpreted when it comes to gay rights, but we certainly know (and I’m speaking for myself not Lambda) that LGBT Americans will be far better protected under the auspices of Title VII of the Civil Rights Act, with its half century of case law, than under the fragile shelter of a stand-alone mess of a bill that was proposed as a compromise in the 1990s.

    Let’s put sexual orientation and gender alongside race, sex, national origin and religion in our most powerful federal law against workplace discrimination. If we wind up out in the cold with only ENDA to protect us, who knows whether or not some court will use Hobby Lobby as a pass for gay bias. If we are added to Title VII however, the Hobby Lobby precedent, with its admonition that it could not support “racial” discrimination, arguably could not be used against us.