The left has been… animated in their objections to the Supreme Court’s decision in the Hobby Lobby case which declared the mandate in the Affordable Care Act which forced employers to provide employees with abortifacients drugs over their religious objections to be a violation of the law.
In spite of what many have characterized as the narrow and tailored ruling by the Court, some political and legal observers have determined that the ruling is a step toward the legalization of discrimination.
One of the more creative arguments in this direction was submitted by NPR’s legal affairs correspondent Nina Totenberg. On Monday, she suggested that the Court has created a legal pathway for employers to discriminate against their employees on the basis of race, sexual orientation, and even national origin.
Totenberg summarized Justice Anthony Kennedy, who wrote a concurring opinion in favor of the decision to strike down the mandate: “Don’t worry,” she said. “As long as I’m here, the floodgates won’t open and it won’t be hundreds and hundreds, and thousands and thousands of companies saying ‘Why me?’”
She went on to say that a future Court could rule that it was legal to not hire based on sex if the employer asserted that it violated their religious belief. “Or cases involving gays and lesbians,” she added. “Or cases involving people from different foreign origins. It’s just not clear.”
Federal Equal Opportunity Employment laws are clear that discrimination based on those guidelines is already prohibited. Furthermore, given that the decision was intentionally narrowly tailored to apply only to emergency contraceptives, as opposed to, say, vaccines, it seems unlikely that Totenberg’s nightmare scenario could materialize.
For his part, George Washington University Law School professor Jonathan Turley said on CNN on Monday that this decision the “flip side” to Citizens United; one extended speech rights to corporations, and this ruling extends religious freedom to some corporations. He added that decisions like that which prohibited an Arizona baker from refusing to provide his service to same-sex couples must now be revisited.
It would seem to me that failing to provide an employee a narrow set of health coverage benefits and flatly refusing to provide a service to a customer based on their identity are dramatically different situations. It seems like a stretch, but there is no doubt that emotions are running hot today.