In 2010, then-candidate Rand Paul, a libertarian Republican running for the open U.S. Senate seat in Kentucky, told the editorial board of the Louisville Courier-Journal that he disagreed with the Civil Rights Act of 1964 because it prohibited private businesses like restaurants and hotels from discriminating against black people.
Though discrimination is “abhorrent,” Paul suggested that property rights should prevent government from telling businesses what to do. “I do believe in private ownership,” he said.
For the past four years, Sen. Paul, now considered a top GOP presidential contender in 2016, has been trying to shake off those comments. Last week, in commemoration of the act’s 50th anniversary on July 2, Paul released a statement praising the landmark law.
Paul’s private-property objections to the law were not new. In the 1960s, several business owners challenged the new law as an infringement on their property rights and challenged the government’s ability to regulate how they run their businesses. They all lost.
But the fight about whether private businesses can discriminate is not over. On the eve of the act’s 50th anniversary, the Supreme Court opened a door for discrimination by private businesses based not on property rights but religious beliefs.
In Burwell v. Hobby Lobby Stores, Inc., the conservative five-justice majority found that closely held corporations do not have to comply with the Affordable Care Act’s requirement that insurance plans cover women’s contraception if that conflicts with the religious beliefs of the business’s owner. Many fear the opinion could have wide-ranging effects that will once again allow discrimination in public accommodations and hiring.
“Most people are worried about the Hobby Lobby decision not for what it held now, today, but for the possibility of challenges using Hobby Lobby later, tomorrow,” said Allison Orr Larsen, a law professor at the College of William and Mary law school in Virginia. “Most people are concerned about the slippery slope.”
This slippery slope includes the hot-button topic of discrimination based on sexual orientation, as well as discrimination based on gender, age, disability or pregnancy. By conferring religious-freedom rights on corporations under the Religious Freedom Restoration Act (RFRA), the ruling could lead to corporations seeking exemptions from anti-discrimination laws based on religious beliefs.
Justice Ruth Bader Ginsburg raised this in her strongly worded dissent, arguing that the majority opinion’s logic is not confined to either “closely held” companies or the question of birth control coverage. Ginsburg cited a number of cases brought over the past decades in which business owners thought serving or hiring various minorities violated their religious beliefs. She also cited the recent case of Elane Photography, a New Mexico business owned by a couple who refused to take pictures for a lesbian couple’s commitment ceremony.
“Would RFRA require exemptions in cases of this ilk?” Ginsburg asked.
Justice Samuel Alito responded to Ginsburg’s dissent in his majority opinion, as did Justice Anthony Kennedy in a concurrence with the majority specifically written to stress the narrowness of Alito’s ruling. “The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction,” Alito wrote. “Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race.”
Kent Greenfield, a constitutional and corporate law expert at the Boston College Law School, believes Alito tried to hide the sweeping logic of his opinion. As one example, he points to the fact that Alito responded to Ginsburg’s argument about discrimination based on race but did not respond to her examples of other forms of discrimination, calling the omission a “pregnant negative, the implication of which is that he doesn’t want to imply that those cases would fail.”
“Alito is brilliant, he knows exactly what he is doing,” Greenfield said. “You can’t write that paragraph about race in answer to Ginsburg’s dissent about race and sex and sexual orientation and it not occur to you that you’re leaving the others out. He did that on purpose.”
“It’s the job of a dissent to say the sky is falling,” said Larsen, a former Supreme Court clerk. “But I do think it’s interesting that what Justice Ginsburg wrote prompted Justice Kennedy to write his own short concurrence to resist her, to say, ‘No, no, no, it’s not going that far.’ To me, that shows that it rings a little true, that it makes him nervous.”
Though most legal experts agree that race-based discrimination is unlikely to return, the Hobby Lobby decision is already having an effect on the fight for gay rights in the workplace. President Barack Obama has promised to issue an executive order banning employment discrimination based on sexual orientation and gender identity among government contractors.
But after the Hobby Lobby ruling, religious leaders asked the administration to include an exception for religious employers. Meanwhile, a number of gay rights groups have withdrawn support from the Employment Non-Discrimination Act, a bill passed by the Senate but stalled in the House that would ban employment discrimination against lesbian, gay, bisexual and transgender (LGBT) people. The bill includes an exemption for religious organizations, and after Hobby Lobby, advocacy groups now believe that exemption has become a gaping loophole.
Under the RFRA, the law that the Hobby Lobby case turned on, a law is allowed to burden someone’s religious freedom if it furthers a “compelling” government interest in the least restrictive way possible. In the Hobby Lobby case, for example, the court assumed that the government had a compelling interest in making sure women receive birth control coverage, but decided that the requirement that employers cover it was not the least restrictive way of achieving that goal. The government could pay for the coverage itself, Alito reasoned, and then achieve its goal without burdening religious business owners.
For this reason, Josh Blackman, a law professor at South Texas College of Law, doesn’t believe Hobby Lobby will ultimately lead to employment discrimination for various minorities—because the government has a compelling interest in ending such discrimination and there’s no workaround except by simply prohibiting it. Perhaps Hobby Lobby will lead to more RFRA cases, he said, but it’s unlikely religious employers would win those challenges.
What’s more likely, Blackman says, are exemptions for companies that don’t want to serve certain groups, like the LGBT community in the Elane Photography case. A case like that involves a form of speech, in which a company is paid to create something—in this case, photographs of a gay wedding—that goes against its religious beliefs. “That’s a much more difficult issue,” Blackman said. “Invariably, these issues arise when someone is asked to do a service for them.”
But others see no logical end to the majority opinion in Hobby Lobby: Virtually any corporation can be a person with religious rights, and that right can trump a compelling government interest that affects the rights of a third party (in Hobby Lobby it was women’s access to contraception). As Ginsburg quoted in her dissent, “[Y]our right to swing your arms ends just where the other man’s nose begins.” Though Alito’s reasoning relies on the government stepping in to pay for contraceptives, Hobby Lobby breaks ground by allowing companies’ owners to infringe on the benefits their employees are entitled to by law.
“I don’t think Ruth Bader Ginsburg’s dissent is far-fetched, but we’ll have to wait and see,” said Ed Dorn, a former dean of the Lyndon B. Johnson School of Public Affairs at the University of Texas, Austin.
The Civil Rights Act tried to end an era in which a black person could walk into a business and be refused service. Though it’s unlikely courts will revisit racial discrimination, if Ginsburg is right and businesses can get exemptions from providing services to certain minority groups, Hobby Lobby could create a situation where LGBT individuals can be refused services.
“The purpose of these anti-discrimination acts, and the purpose of Obamacare too, is to provide universal, uniform protection against discrimination on the one hand and deprivations of health care on the other,” Greenfield said.
“I’m quite saddened and what worries me is that matters that we thought were settled 50 years ago are being revived,” Dorn said. “Rand Paul throwing out, in a rather thoughtless way, this whole private property thing. That argument was made and many of us thought settled in the 1960s, but he chose to raise it again. Why? We thought that some of the fundamentals about voting rights had been settled 50 years ago, but the Supreme Court chose to unsettle them. Why?” he asked, referring to last year’s Supreme Court decision striking down a critical portion of the 1965 Voting Rights Act.
For Dorn, the underlying connection is a liberal versus conservative battle over whether everyone in the United States will have the same rights and access to services.
In 1964, the owner of a Birmingham, Alabama, barbecue restaurant, Ollie McClung, filed a lawsuit against the Civil Rights Act, arguing that the law was unconstitutional as it applied to small businesses like his. McClung’s belief in segregation was a sincere religious belief, but the Supreme Court held that the federal government had the power under the Commerce Clause to enforce integration in public accommodations.
“[Ollie's BBQ] wasn’t a case about religious freedom, but it was a case about the power of the federal government to make decisions for local businesses,” Larsen said. “And I think that there’s an undercurrent of that going through this debate about Hobby Lobby. Not the plaintiffs in Hobby Lobby, but some of the rhetoric that you read is a lot of ‘Well, the federal government can’t make decisions for my business.’ And that’s just not true.”