LGBT groups dump ENDA after Hobby Lobby

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.