Hobby Lobby Redux

Continuing our discussion of RFRA and the expansion of (some people’s) “religious liberty”…

File the first paragraph of this article under “The Notorious RBG told you so.”

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The facts are evidently not at issue. Two weeks after the employee notified the employer that she would be beginning to transition, the employer–who owned the funeral home–fired her for “engaging in behavior offensive to his religious beliefs.”

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Lawyers representing the employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability, and a federal court agreed, holding that paying damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

Well, yes. That’s the purpose of damages. If I fire an African-American employee simply because he is African-American and my religion teaches that African-Americans are inferior (an argument made by many Southern shopkeepers in the wake of the 1964 Civil Rights Act), I have violated his civil rights and I will owe damages that will “burden” that belief.

If I refuse to promote a woman to an executive position for which she is qualified because my religion teaches that women should be submissive, I can be sued for damages that would “burden” my religious beliefs.

Damages are awarded to compensate people who suffer losses when their rights are violated. They are intended to “burden” discriminatory behavior–whatever the motivation.

It’s one thing to exempt churches and religious organizations from laws of general application that are inconsistent with their theologies. It is quite another to say that owners of secular businesses can hire and fire employees or refuse to accommodate customers based upon the religious preferences of the owner.

I find it hard to believe that this court would have reached the same conclusion had the person fired been Jewish or African-American, whatever the employer’s church preached. Although attitudes about LGBTQ Americans have changed dramatically, there is still substantial prejudice against the gay community, and claims of “religious liberty” that would be given short shrift if used to justify discrimination against blacks or women or Jews are somehow seen as more meritorious or “sincere.”

They aren’t. And the likely consequences of this ruling, if it is not overturned, are stunning:

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

In her Hobby Lobby dissent, Ruth Bader Ginsberg warned that the Court had ventured into a minefield.

Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”

She was prescient.


  1. I have not stepped foot in a Hobby Lobby store since they won that lawsuit. Religious freedom should not be allowed to trump civil law.

    You always make very strong points in your final paragraph. Especially in today’s post. If you had ever represented citizens in lawsuits, I imagine you would not have lost a single case.

  2. Rather than get myself worked up into a lather this morning over another of your posts, I’ve decided that this recent case may work out to be a good thing. Of course, this decision is going to be appealed, and then appealed again, and end up at the Supreme Court. Then, oh please dear Lord, let the federal RFRA be overturned once and for all and take with it every RFRA state law across the country. Then, and only then will we ALL be allowed to think and believe as we wish.

  3. Hobby Lobby has been OFF my store shopping list since this decision in 2014. Likewise, Chick-Fil-A. I don’t care how good your prices or your chicken, my money is best spent elsewhere. And this will be my decision until overturned or… they start supporting their employees fairly.

  4. Unfortunately, the LGBTQ population is not covered under Title VII. Title V, Title IX, nor any other part of the Civil Rights Act, therefore, it is legal to discriminate against them. The majority of states also do not provide protections for LGBTQ individuals. I’m actually a little surprised that the EEOC brought the case in the first place.

    That being said, the Hobby Lobby case was perhaps the most dreadful decision of the Roberts Court, and that says a lot, because there have been some really awful decisions by that court. I would love to be able to stick around long enough to see how court historians will view this period.

  5. Who knew “freedom” was so complicated?

    I’m not sure this is about that though. The legal profession needs to get to work on defining not “freedom” but “religion”.

  6. Peggy; neither is the LGBTQ population DISqualified under Titles VII, V and IX. When written, I “assume” the legislator’s “assumption” referral to “sex” referred to male or female – NOT sexual activities. This might become questionable regarding Transsexuals and that is a physical condition remedied by medical treatment. Restroom provisions might be considered an unreasonable accommodation to the workplace physical facility. Our sexual activities are also not protected or denied by the Constitution but some Amendments have brought this into question. RFRA and all similar laws are based on personal opinions of a select few regarding their select few of the population. This issue and the refusal to allow women to purchase birth control are discrimination. Are there any statistics regarding the number of identified Transsexuals – other than Chaz Bono and Caitlyn Jenner?

    I’m sure the full course of treatment for Transsexuals is expensive; causing health care providers to be against coverage as well as employers who pay a portion of the cost. The additional cost of OB/GYN care due to pregnancies would be much higher than the cost of birth control. What I read when I researched these three Title contents appeared to me to be similar to the acceptance (or DENIAL) of the Reasonable Accommodations Section of the Americans with Disabilities Act; discrimination disallowed unless it requires UNDUE hardship on employers. (This is a battle I fought personally due to my hearing loss when City Supervisor and Manager denied me the option of not covering phone calls for all other support staff and their superiors. They knew nothing about the Act or the process. I researched all provisions and set up the brief meeting which I won.) This should not be an issue regarding medical protection – including provision of birth control for female employees. NO; I do not support all women obtaining all birth control free of charge, it is medical care and we should have co-pay as with other medical care.

    I have asked before and received no answer so I will ask again; does Hobby Lobby – and all other businesses who jumped on their bandwagon – allow provision for Viagra and erectile dysfunction supplies for men in their approved list of health care coverage? These ARE covered under Medicare; vision, hearing and dental coverage are NOT. You do qualify for one pair of single-vision eyeglasses IF you have had lens implant surgery.

  7. Pete, you are so right. There is a difference between holding a religious belief and using the government to help you coerce your employees and customers to act on the tenets of your beliefs.

  8. JoAnn,

    Viagra and Cialis, both prescription drugs for treating erectile dysfunction, are approved by Medicare. Yes, approved, but let’s consider that Viagra and Cialis are approved at the rate of “4 pills per month”. Seriously, I’m laughing at a not too distant conversation I had with our local CVS pharmacist when I asked about Medicare coverage for both these medications — not for me but for my husband who’s recovering from prostate cancer surgery. Together, the CVS pharmacist and I agreed between much laughter that men on Medicare were restricted to good sex on 4 days each month. We envisioned some government bureaucrat in a stuff office making that decision. 😉

  9. Our children will look at us with horror, much like we looked at the preceding generation which spot on Elizabeth Eckford and the Little Rock Nine and who applauded the death of Emmet Till.

  10. What I’m concerned about is our children will not look at us with horror but instead will be thoroughly indoctrinated into this New Normal that is being foisted upon us. While we all throw up our hands and spout off against it as we should there is no cavalry that will come to our rescue and save us. We are that cavalry and so far it seems we are far too content to sit by as spectators and watch this horrific spectacle play itself out than to do anything to stop it.

    I hope I’m wrong but we seem to be locked in circular logic that has no conclusion. We have ceded control over this to people that should know better but clearly don’t and who do not have the best interests of the country at heart and who feel totally justified in doing the despicable things that they continue to do. At some point we’re going to have to stand up and defend traditional American values and I just hope and pray that will we come to the realization that we must do that that it’s not too late.

  11. There is a Hobby Lobby store nearby. We go there only when there is absolutely no choice. (time, etc.,) which means we have not gone there in at least the last year. But we do have a rule: if you go to Hobby Lobby, you have to give double that amount to Planned Parenthood as penace. (not catholic)

  12. I wrote on this issue yesterday in response to Sheila’s blog, warning of chaos if we continued to allow religious sentiments to overwhelm secular realities in governing. I, too, have not darkened the doors of Hobby Lobby shops since (as a couple of respondents to today’s blog wrote), nor have I spent a cent for some 12 or more years with McDonald’s, Exxon-Mobil, Menard’s, Wal-Mart et al., though on differing grounds than those supposedly undergirding the holding in Hobby Lobby, grounds such as the way such corporations treat their employees, support for Koch-led initiatives etc.
    Ruth Bader Ginsberg in her dissent is 100 percent correct in Hobby Lobby by labeling the outcome an adventure into a minefield (I called it chaos yesterday – same thing). We are traveling in uncharted seas with no compass but on the positive side perhaps with the addition of a new justice on the court we will be enabled in time to reverse such travesties as Hobby Lobby and (in other areas of ongoing and successful corporate control) such as McCutcheon and other anti-democratic cases which have opened the floodgates to libertarian money designed to buy America and its future which, in their view, is apparently just another accounting item on the asset side of their balance sheets.
    To wax philosophical, I had always thought that America and its people and its future and its democracy purchased with the blood of patriots from Valley Forge to Iwo Jima and beyond were not something that could ever be placed on the moneychanger’s shopping block – my mistake. With the future of democracy hanging in the balance, the Dow is beating the flag, and Hobby Lobby is just one more notch on the belt of the rich and corporate class in their takeover of America and its economic, social and political institutions. (End of philosophical commentary). The choice in saving our democracy is ours and the process is political, so we must elect those who will choose democracy over total corporate control of our country and a return to the Gilded Age. So, vote!

  13. All these years we worried to death about losing freedom to Communism while the real threat was under-regulated Capitalism.

    Regulation like crime is a never ending battle of wits and our hands have been tied over 16 years by first Bush II and then Republican Congress.

    We have much catching up to do Hillary.

  14. JoAnn, I think it is safe to assume that Hobby Lobby and other so-called religious led corporations do cover the cost of ED drugs, since they were not included in their lawsuit.

  15. If pharmacists can refuse to fill prescriptions for some medications (such as birth control pills or the morning-arter pill) based on their religious belief, does that also mean that if the pharmacist believes sex is for procreation only, the pharmacist can deny viagra or cialis to a man who doesn’t want children and/or refuses to answer the pharmacist’s questions on child-bearing plans?

  16. Speaking of under-regulated capitalism, I’m drawn to today’s front-page story from the the Indianapolis Star where we learn of the impending failure (fingers crossed) of one of the US giants in ‘for-profit’ higher education, ITT, which is headquartered here in Indiana, in Carmel, but not to be understood as an Indiana issue but as a national issue. Not only do we learn that ITT has been operating a rather shabby higher education business that relied largely on student tuition coming from the Federal Student Loan Program, but we also learn that ITT had ventured into the extremely profitable ‘for-profit’ education management of Public Charter Schools whereby the states funnel public school monies from the taxpayers into charter schools who, by law, are allowed to operate on public taxpayer funds but yet outside the traditional levels of public school accountability. This issue of public charter schools is not to be confused with school vouchers, an entirely different issue for another conversation.

    How on earth the ‘for-profit’ ITT gained the initial respect of the Federal Student Loan Program is well beyond my understanding. How ITT’s ‘for-profit’ Charter School operation gained the respect of several states’ Dept of Education is also beyond my understanding.

    Compounding my very real dislike of the ‘for-profit’ education industry (yes, it’s an industry) is my learning only recently that former President Bill Clinton (yes, voted for him two times) quietly sold out to the ‘for-profit’ education industry on an international, global basis when he accepted $16+M (from 2010-2014) for serving as a ‘consultant’, an ‘honorary’ chancellor for an international ‘for-profit’ higher education business, Laureate Education, that first began in the late 1990’s as one of those shopping center storefront tutoring businesses, Sylvan Learning Systems.

    The Washington Post has published articles of interest regarding this ‘for-profit’ education monstrosity, but evidently few citizens take note. At this point in the current election cycle, I trust no one, but I do trust the documented sources in the WaPo article.


  17. BSH 12:34, you have provided an answer to your own question of – How on earth the ‘for-profit’ ITT gained the initial respect of the Federal Student Loan Program is well beyond my understanding.

    As Baby Boomer who grew up in the South Chicago area the answer is what we call Clout. Think of Clout as a graph, where “X” is the Political Status of the individual and “Y” is the Corporate Status. Depending upon your Political Position (Clout), the higher you are, the more the “Y” or Corporation must pay (in one form or another) to create the line of intersection for the desired result.

    Where the lines intersect the Corporations will lobby or use campaign donations, consultancies or pay for speeches will equal the Political Status of the individual to influence the necessary legislation. Then laws will be passed to permit the desired activity.

    Whether these laws benefit the proles, is of little consequence.

  18. Louie,

    Like you I’m a Baby Boomer and still remember “x to the left, y to the sky” when dealing with the mysteries of coordinates. So, if the x-axis, individual political status, runs left and right, and the y-axis, corporate status, runs up and down, are we ‘infinitely’ screwed by those little arrows appearing at the ends of the x and y lines?

  19. “At some point we’re going to have to stand up and defend traditional American values and I just hope and pray that will we come to the realization that we must do that that it’s not too late.”

    I would like to see a good definition of “traditional American values.” It seems coded to mean being able to tell groups that don’t fit the “Leave It to Beaver” model how to live their lives, especially in the bedroom. It seems coded to mean being able to use the Bible to discriminate and persecute people who are “different.” (As Sheila’s post notes, conservatives spouting Bible verses have used religious convictions to perpetuate racial inequities, child labor, domination over women, and so on.) I never hear the phrase “traditional American values” used to protect the diversity that makes this country great, or to be creative, or to be open to considering new ideas, or to question norms, all of which propelled this country to occupy its position in the world. If defending American values means toeing an arbitrary line, bowing to religious dogma, and never questioning the rules, I will declare myself a conscientious objector.

  20. BSH 2:49, I am not sure if Einstein could solve the question are we ‘infinitely’ screwed. I would say the Corporations, the McMega-Media and the establishment politicians and their appointees have an interlocking defense system.

    I suppose there is hope to defeat the Corporatists that seem to reign supreme in their fortifications:
    Carl von Clausewitz
    “If you entrench yourself behind strong fortifications, you compel the enemy seek a solution elsewhere.”

    Given our Democratic candidates here in Indiana for the Senate, Evan “Duck and Cover” Bayh, and for Governor John Gregg another Clausewitz quote seems applicable:
    “Given the same amount of intelligence, timidity will do a thousand times more damage than audacity” I think you would be hard to pressed to find two people more timid than Bayh and Gregg.

  21. Greetings Louie. Good point, except their part is not timid when it comes to asking for moey. And if you give once they never stop. I’ll vote for them but no more money. Happy Labor Day to all of you Irvin BAA

  22. I’m not going to defend RFRA here, especially since Gov. Pence managed to run Indiana’s version into the ground; but at some point in the near future when Sheila turns her attention to the minimum wage, I’m sure she’ll want to sing Hobby Lobby’s praises as an example of a model corporate citizen. After all, this is a company that was already paying a minimum of $13 an hour to its full time employees and promptly raised that figure to $14.50 an hour immediately after the Supreme Court decision. That’s double the federal minimum wage and might help employees offset the cost of contraception. Then again, maybe I should be quiet: everything in this forum seems to be divided entirely into good or evil. No room for nuance here.

  23. Indiana has a constitution for this property area of 92 counties as regards places zoned commercial. Where do the Indiana Justices stand on this matter, under what codes in The State of Indiana Constitution for this property area? What have the Legislators written in Laws for this residential and labor division area of the 50 States — all with one Constitution that reads the same and 50 original ones — not plagiarized. Any genuine Plaintiffs IN Indiana public service jobs will halve their chances of winning any case by talking about all 50 States’ well known Constitution still in force as is The State of Indiana property law.
    When I talked to Hobby Lobby clerks at Richmond, it was not about Indianans’ stories about their employer’s medical practices or licenses, for that matter, ALL signed by Indiana inspectors who may not even live in Indiana, may not even vote at all for religious reasons.

  24. Well, “the good is oft interred with their bones”. Hobby Lobby probably does a lot of good things for the employees and is positively focused, etc., but their adversarial relationship with behavior the public agrees with will eventually be remembered more than what has been good. I’m afraid that will happen with the Christian Church, which has a long history of doing good and even wonderful things, including the establishment of hospitals and other efforts that have been adopted and admired by the society, but people will remember the far right “Christians” and their anti-intellectual, anti-science and racist attitudes instead. I’m afraid all of this will eventually contribute to (the title of the book) “the end of white Christian America”. The good will be forgotten.

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