AU Attorney Dissects Hobby Lobby Ruling For Harvard Law & Policy Review

Americans United Associate Legal Director Alex J. Luchenitser recently wrote an analysis for the prestigious Harvard Law & Policy Review of whether a recent Supreme Court ruling will lead to religious exemptions from anti-discrimination measures.

In “A New Era of Inequality?: Hob­by Lobby and Religious Exemption from Anti-Discrimination Laws,” Luchenitser wrote that thanks to the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., which said that some for-profit corporations have a right to “exercise” religion, the federal Religious Freedom Restoration Act (RFRA) could be misused to allow religious majorities to discriminate against LGBT persons and others. Luchenitser noted that RFRA, passed in 1993, was intended to prevent the government from interfering with core religious practices without strong reasons, not give Christian business owners the right to refuse service to gay couples.

But when the high court concluded that RFRA gives rights to corporations, Luchenitser wrote, it also made it much harder for the government to overcome a religious objector’s complaint by showing that the objector’s religious practice would not be substantially burdened. The decision also makes it harder for the government to prove that its course of action, such as the birth control mandate and its various compromises, is the least burdensome method for accomplishing the government’s goals.

Luchenitser opined that the Hobby Lobby decision will open a Pandora’s Box.

“A principal concern about the impact of Hobby Lobby is whether the decision will open the door for religious objections to override laws that prohibit discrimination in employment and other arenas,” Luchenitser wrote. “Will the decision usher in a new era of inequality in which businesses have a right to refuse to hire or serve persons whose identities or conduct are condemned by the theological teachings of the businesses’ owners?”

In order to avoid some of these potential problems, Luchenitser suggested several ways to lessen the negative impact of Hobby Lobby. For example, he said for-profit businesses could be prohibited from making claims under RFRA, but “[t]he soundest way of ensuring that Hobby Lobby does not open the door to private discrimination or other impositions of religious beliefs on persons who do not share them would be to specifically exclude from RFRA’s coverage requests for exemptions that would impose nontrivial burdens on third parties.”

Ultimately, the Hobby Lobby decision did not bolster religious freedom in the United States, Luchenitser wrote. Instead, religious freedom will be lessened because some faiths will be allowed to impose their beliefs on others.

In conclusion, Luchenitser called on Congress to come up with a solution to the problems unleashed by Hobby Lobby.

“Religion should not become a trump card that allows one who professes it to hire or serve whomever they want,” he wrote. “Hobby Lobby represents a step in the direction of such a retrograde society, atomized and divided by corporate theocracy. Congress should amend RFRA before any more steps are taken toward such an era of inequality.”

Luchenitser’s article was cited by William Greider, a columnist for The Nation.

“If employers can reject the birth-control pills for their employees by citing their religious objections to contraception, do employers also have a right to refuse serving gay couples because they abhor same-sex marriages?” asked Greider. “Alex Luchenitser of Americans United for Separation of Church and State wonders if the Supreme Court has opened the door to ‘a new era of inequality.’”

Luchenitser received assistance with the article from Americans United legal fellow Joshua Hoffer.