By Executive Director J. Brent Walker, interviewed and originally published by The Christian Century
As the dust continues to settle from the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., the Christian Century asked Brent Walker to discuss its impact. This is an abbreviated version of the Q&A that ran in its Nov. 26, 2014, issue, available online.
Christian Century: The contraceptive mandate in the Affordable Care Act and the Supreme Court’s ruling last summer in Burwell v. Hobby Lobby seem to have opened up a new stream of religious liberty cases. Do you expect to see a variety of cases making their way to the Supreme Court in which a for-profit employer claims an exemption on religious freedom grounds to an otherwise neutral law? Or will Justice Samuel Alito’s dictum that Hobby Lobby is just about the contraceptive mandate prove correct?
Brent Walker: By holding that corporations are within the statute’s coverage of “person,” the Hobby Lobby decision does open the door for additional claims to be brought by for-profit employers. However, in no way does that mean that the claims will be successful.
The court’s opinion purports to be, and was, specific to the claim of Hobby Lobby, a “closely held” corporation, and its objection to the contraceptive mandate under the Affordable Care Act. Of course, religious freedom claims involving blood transfusions and vaccinations have been brought in the past, but by individuals and religious organizations. The court’s opinion applies only to a “closely held corporation,” a term which will have to be further defined in the future …
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CC: How does this legal discussion of religious exemptions affect cases involving LGBT people? Will religious liberty be invoked in order to accommodate religious objections to gay marriage, for example?
BW: First, it is clear that churches and houses of worship, and perhaps other pervasively religious organizations, will not have to condone or participate in same-sex marriages to the extent they violate their sincerely held religious beliefs.
However, there have been and will continue to be religious liberty claims made by individuals in businesses, sometimes incorporated, who are involved in the periphery of the marriage ceremony. These would include, for example, the baker who makes the wedding cake, florists who supply flowers, photographers who take pictures of the ceremony and the reception, and clothiers who rent tuxedos.
Some argue that these folks, already engaged in the stream of commerce, should not be able to decline to provide these goods and services based on religious objections. Others say that, particularly after Hobby Lobby, there can be a burden on the exercise of religion even in businesses operating in the corporate form in the marketplace. Others have suggested a more moderated approach in which these businesses should be afforded religious liberty protection to the extent they are arguably being required to somehow participate in the ceremony (e.g., photographer, musicians), but those that are primarily selling or renting goods in the marketplace (e.g., baker, clothier) should not be able to make such a claim.
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CC: How plausible is the UCC argument in that case?
BW: So far, successful challenges to bans on same-sex marriage have been brought under the 14th Amendment’s equal protection clause and analogous state provisions. Challenges based on religious liberty claims are unusual.
If the rather ambiguous North Carolina law is interpreted to criminalize acts of religious worship that simply sanctify same-sex marriage in the churches’ eyes, the law is clearly unconstitutional. If it is interpreted just to forbid the churches from purporting to perform a civil same-sex ceremony, the claim is still plausible but the outcome less certain.
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From the November/December 2014 Report From the Capital. Click here to read the next article.
