The Supreme Court’s Hobby Lobby v. Burwell decision has elicited a lot of legitimate alarm — and political grandstanding.
Senate Democrats have latched onto the issue of women’s health, with Majority Leader Harry Reid embarrassingly blasting the “five white men” who voted to open a wide exception to Obamacare’s contraception mandate. Justice Clarence Thomas, who is black, voted in the majority, and Congress itself passed the law that the court relied upon to render its decision. A lot of current and former lawmakers had a hand in Hobby Lobby, too.
Senate Democrats also introduced a bill this month that would require corporations to comply with all federal public health requirements regardless of their owners’ religious objections. It would be useful to ensure that religious employers can’t evade requirements to provide coverage for vaccinations, blood transfusions, contraception and other important health care products and procedures. But it’s widely accepted that the bill has scant chance of passing, in part because the Obama administration will probably find a way to work around the Hobby Lobby ruling to supply contraception anyway. Expect little but campaign slogans to emerge from this episode.
A sore outstanding question, though, is the extent to which the decision affects a realm of policy that the Oval Office can’t address satisfactorily on its own: anti-discrimination rules. The problem came into focus last week when several gay rights groups withdrew their support from the Employment Non-Discrimination Act, a bill that is supposed to offer workplace protections to gay, lesbian, bisexual and transgender Americans. The act passed the Senate this year and is sitting in the House. It contains a religious-exemption clause explicitly allowing religious employers to discriminate in their hiring practices based on sexual orientation or gender identity. The worry is that if the Supreme Court can conclude that corporations owned by religious people don’t have to provide insurance covering contraception, perhaps the justices would allow all sorts of businesses to discriminate against gays and lesbians, sourcing that religious exemption to ENDA itself. For that, there would be no easy administrative patch.
This question concerns a live bill, some form of which is bound to pass — if not in this Congress, then eventually. We can’t blame the activists who dropped their support for the current language. Any exemption to employment discrimination rules should not apply far past the pulpit. But the Supreme Court has signaled that it is willing to aggressively apply faith-based exceptions to general laws.
Still, more than half the states lack workplace protections for gay, lesbian and transgender Americans. That is why we sympathize with the advocates who are not ready to give up on the bill. They and their allies in Congress should push to strengthen its language, removing any possibility that it would condone the sort of workplace discrimination it seeks to eliminate, and continue to work for its passage.
The following editorial appeared in Saturday’s Washington Post.