LGBT groups dump ENDA after Hobby Lobby

posted at 8:41 am on July 9, 2014 by Ed Morrissey

The Hobby Lobby case has produced some ridiculous hysteria and pronouncements, especially from lawmakers and Obama administration officials, and that may have just produced some significant backfire on their own side of the aisle. The White House and Democrats on Capitol Hill put a lot of effort into pushing the Employment Non-Discrimination Act (ENDA) on behalf of the LGBT community, a bill that would prohibit employment discrimination for a wide range of sexual-orientation categories. It passed the Senate with Republican votes that came after adding a clause that protected religious expression similar to the Religious Freedom Restoration Act (RFRA), the statute on which the Hobby Lobby decision rests. At the time, LGBT groups thought this was so terrific that they challenged the House to take up the bill, and Democrats hoped to use the debate to fire up their base in the midterm elections.

After a week of sky-is-falling rhetoric over Hobby Lobby, though, the same LGBT groups that pushed ENDA now have disavowed it on the basis of the Hobby Lobby demagoguery:

Several major gay rights groups withdrew support Tuesday for the Employment Non-Discrimination Act that would bolster gay and transgender rights in the workplace, saying they fear that broad religious exemptions included in the current bill might compel private companies to begin citing objections similar to those that prevailed in a U.S. Supreme Court case last week.

The gay community is a key constituency and source of campaign donations for Democrats, and calls to rewrite the most significant gay rights legislation considered in recent years is a major setback for the White House, which had used passage of the legislation last fall as a way to draw a contrast with House Republicans, who have refused to vote on the measure.

But the groups said they can no longer back ENDA as currently written in light of the Supreme Court’s decision last week to strike down a key part of President Obama’s health-care law. The court ruled that family-owned businesses do not have to offer their employees contraceptive coverage that conflicts with the owners’ religious beliefs.

Let’s see how many Chicken Littleisms we can pack into a paragraph, shall we?

Rea Carey, the group’s executive director, said in an interview that “If a private company can take its own religious beliefs and say you can’t have access to certain health care, it’s a hop, skip and a jump to an interpretation that a private company could have religious beliefs that LGBT people are not equal or somehow go against their beliefs and therefore fire them. We disagree with that trend. The implications of Hobby Lobby are becoming clear.”

“We do not take this move lightly,” she added. “We’ve been pushing for this bill for 20 years.”

If they’ve been working on this bill for 20 years, maybe they should have studied RFRA and the balancing tests applied to cases such as these. Contra the hysterics, RFRA and similar language does not give anyone carte blanche to violate the law and claim religious expression as the Get Out of Jail Free card. What it does do is require courts to determine whether a regulation or law (a) substantially burdens sincerely held religious belief, (b) serves a compelling state interest, and (c) is the least burdensome method of serving that compelling state interest.

The Hobby Lobby case rested on a finding that (a) was true and (c) was obviously false, since HHS had offered other “accommodations” to other organizations (even though the 5-4 decision did not state that the accommodation actually satisfied (c) either). They never got around to addressing (b) in a definitive manner, but note Carey’s allegation that the court said that “you can’t have access to certain health care.” That’s not at all what the issue was; it was whether Hobby Lobby could be forced to provide contraception when it substantially burdens the religious practice of its owners. There is no limitation on access to contraception as a result of Hobby Lobby, and never was. Furthermore, the Alito decision made clear that this was only in regard to contraception, and not vaccinations or blood transfusions or other “health care,” which gives a hint of what the court thought about (b).

In the case of employment discrimination, though, courts have routinely ruled that government has a compelling interest in ensuring equal treatment regardless of religious beliefs, even those sincerely held. In fact, they have ruled that way even on commerce discrimination, most recently in the case of the bakers and photographers who didn’t want to participate in same-sex weddings. Statutory enforcement such as that in ENDA has been commonly considered the least-burdensome method of addressing that compelling interest. Hobby Lobby didn’t change a single stroke of that precedent. Even if the exemption clause in ENDA is broader than that in RFRA, the overall thrust of the statute and intent of Congress in passing it would still move the LGBT lobby’s goal forward on the ground first, and probably in courts, too — which would still end up having to do the same kind of balancing test that RFRA requires, using existing precedent.

This is a case of hysteria backfire. The White House and Democrats are now left without an easy talking point in the midterms and a way to turn out their base, largely on the basis of their own demagoguery over Hobby Lobby.


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Argue for your limitations and they’re yours – Illusions: The Adventures of a Reluctant Messiah

Well played, Democrats! Well played, indeed…

Newtie and the Beauty on July 9, 2014 at 3:47 PM

That’s not at all what the issue was; it was whether Hobby Lobby could be forced to provide contraception when it substantially burdens the religious practice of its owners. There is no limitation on access to contraception as a result of Hobby Lobby, and never was.

You’ve missed the point: Hobby Lobby did and does provide coverage for contraceptives. What they object to, and refused to cover, was abortifactants, drugs and devices which induce a miscarriage of a fertilized egg. Science tells us that these are human lives; morality tells us that ending a human life (without a really good cause) is wrong. Hobby Lobby declined to subsidise this; but did not (could not) prohibit their employees from doing so on their own.

BTW, Firefox’s market share has been dropping rapidly since then. I quit using it, and it seems I was not alone.

ConstantineXI on July 9, 2014 at 11:21 AM

You are not. However, I should point out that Chrome is a decidedly inferior product; it will “refresh” at inconvenient moments (this is the second time I’ve written this post, arrrgh), and Chrome also wants to auto-play any video on every opened web page… leading to a data draw which will clog even a high-speed WiFi connection. And when the page is closed, it’s still downloading the video, keeping the link clogged. (And as each video’s buffer fills, it plays for a second; so your computer winds up “barking” at you.)

So, what’s the chances of anything like ENDA passing without a religious-exemption clause, since that’s the only option the Democrats can now endorse?

AesopFan on July 9, 2014 at 3:17 PM

Nil, as it’s an election year. The Republicans in the House won’t vote for such a thing.

ReggieA on July 9, 2014 at 4:20 PM

ReggieA on July 9, 2014 at 4:20 PM

There is suppose to be an search engine that is based on Firefox but without the politics. I haven’t downloaded it yet because I am lazy.

Cindy Munford on July 9, 2014 at 5:32 PM

If your boss can dictate one element of your compensation, namely the insurance benefits you may receive as an employee, then there’s no reason to believe they cannot also dictate what, how, and when you are allowed to use other elements of your compensation, i.e. like your actual pay.

Congrats, you just made it feasible for a boss to have complete control over what an employee may buy with their own money.

Nice job.

Tlaloc on July 9, 2014 at 5:36 PM

If your boss can dictate one element of your compensation, namely the insurance benefits you may receive as an employee, then there’s no reason to believe they cannot also dictate what, how, and when you are allowed to use other elements of your compensation, i.e. like your actual pay.

Congrats, you just made it feasible for a boss to have complete control over what an employee may buy with their own money.

Nice job.

Tlaloc on July 9, 2014 at 5:36 PM

Cool straw man, bro.

Not even close to anything that actually occurred or is in the realm of of possibilities.

But your un-informed, ignorant and histrionic shrieking is hilarious to behold.

Just FYI, HL decided what it would provide in terms of what IT offered to it’s employee’s as part of a benefit package. HL in no way, shape or form told the employee’s what they could or should do with what they received with the benefits that HL offered.

Sorry, that you are to dumb to understand.

HumpBot Salvation on July 9, 2014 at 5:45 PM

So they have to boycott the entire nation of China over their abortion record before we can consider their opposition to abortion is sincere?

There Goes the Neighborhood on July 9, 2014 at 2:01 PM

Yes, the SCOTUS should operate like the most disingenuous Alinskyan.

Win for libs!

Axeman on July 9, 2014 at 5:51 PM

Why is all this homosexual crap thrown in our face constantly?

celtic warrior on July 9, 2014 at 11:45 AM

Because bullying works?

3% of the population has the other 97% afraid to cross them. Bullying obviously works very well.

There Goes the Neighborhood on July 9, 2014 at 6:15 PM

ReggieA on July 9, 2014 at 4:20 PM

There is suppose to be an search engine that is based on Firefox but without the politics. I haven’t downloaded it yet because I am lazy.

Cindy Munford on July 9, 2014 at 5:32 PM

The browser is Pale Moon, and I’ve been using it since Brandon Eich was fired forced to resign. [As if there's a lot of difference.]

The search engine it uses is Duck Duck Go, and it’s …. working very well so far.

There Goes the Neighborhood on July 9, 2014 at 6:18 PM

Tlaloc on July 9, 2014 at 5:36 PM

You are stupid.

S. D. on July 9, 2014 at 6:54 PM

Troll posts on the Hobby Lobby story are just funnier and funnier. It is the equivalent of Chicken Little running around with your hands in the air streaming the sky is falling. You are trying to equate conclusions that have nothing to do with the court case. And it makes you look like complete fools.

keep it up though it’s good comedy.

itsspideyman on July 9, 2014 at 7:39 PM

“The gay community is a key constituency…”

How did less than 3.5% of the population become a “key constituency” in this country?

MaxBC on July 9, 2014 at 9:07 PM

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