A Religious Right to Discriminate: Hobby Lobby and 'Religious Freedom' as a Threat to the LGBT Community

Abstract

The Supreme Court in its 2014 decision in Burwell v. Hobby Lobby broadly expanded so-called religious freedom protections in the Religious Freedom Restoration Act (“RFRA”) by striking down a provision of the Affordable Care Act requiring employers to provide health insurance coverage for certain methods of contraception. In doing so, the Court opened the floodgates for employers to claim an exemption based upon any “sincerely held” religious belief. Without inquiry into the sincerity of that belief, businesses and corporations are free to adopt or assert beliefs that could lead to increased discrimination against employees. This is especially troublesome for marginalized groups like the LGBT community, which is already on the receiving end of discrimination under the pretext of religious exemptions. To correct any future misuse of these exemptions, Congress should amend RFRA so that courts are permitted to assess the belief being asserted and contrast it with the potential harm if an exemption is allowed. The purpose of RFRA is to ease the burden faced by people of faith forced to go against their religious beliefs if they obey a certain statute. Easing this burden should focus on heady moral dilemmas, not mere inconveniences. Amending RFRA can ensure it maintains its initial purpose of protecting religious freedom, while not being used as a tool to perpetuate discrimination.