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Thursday, July 03, 2014

Federalism, RFRA, and Free Exercise in the next Hobby Lobby

Someone please tell me if I am wrong on the following points in the potential next round of Hobby Lobby-type litigation.

A major concern after Hobby Lobby is that similar closely held corporations will raise similar objections to legal obligations to hire (and not create hostile environments for) women, racial minorities, pregnant women, religious non-believers and other-believers, LGBTQ people, etc., as well as obligations to serve and do business with those groups.

Here is the thing. Protections for LGBTQ employees and customers are, at this point, not federal; they exist only in some states and/or some municipalities. But RFRA and strict scrutiny does not apply to state or local laws under City of Boerne. So any such claims to avoid those state or local obligations must be brought under the Free Exercise Clause and are likely to fail under Smith, since laws prohibiting discrimination in employment or public accommodations appear to be neutral laws of general applicability. The only way around that is if the company can tie some other constitutional liberty in (such as Free Speech in the wedding photographer case). So, ironically, LGBTQ people may be better off in this realm than women, since the corporation can rely only on the First Amendment, not a statutory strict scrutiny, to avoid its non-discrimination obligations.

Pushing it a bit further: Every state has a prohibition on race, gender, etc., discrimination that parallels federal law. So even if a hypothetical company could claim an opt-out from Title VII's ban on sex discrimination in hiring based on RFRA, that company still must comply with the state ban on sex discrimination in hiring, which, if challenged, again would only receive Smith-level Free Exercise scrutiny and the challenge likely will fail.

On the other hand, many states have their own RFRAs, which would require strict scrutiny of state anti-discrimination laws and might require analysis similar to Hobby Lobby. But that case at least would be litigated in state court, with the state's highest court having the last word; that court would not be bound by Hobby Lobby, may be less solicitous of accommodation demands (depending on the state), and might adopt the Ginsburg view on the question. Such a case would not be reviewable to SCOTUS, because a decision applying state RFRC would be an independent and adequate state ground for the decision. So the future of Hobby Lobby may produce some interesting federalism angles.

Posted by Howard Wasserman on July 3, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

It's a bit more complicated than this on the LGBT front. While, as you say, most protections for LGBT people exist at the state or municipal level, statewide laws remain absent in most states. So the federal protections that exist, or that may come into existence in the near future, are the only protections for many LGBT people, and those are subject to RFRA. These include:

1. The interpretation of federal sex discrimination protections to include gender identity discrimination and discrimination against people for violating sex stereotypes

2. The Employment Non-Discrimination Act, if it ever passes Congress (which in its current form imports Title VII's religious discrimination exemption for religious corporations, but Hobby Lobby probably strikes further)

3. Obama's planned order barring sexual orientation and gender identity discrimination by federal contractors

That said, most (though not all) of the religious liberty issues arising with respect to sexual orientation non-discrimination happen in the context of public accommodations, and those are unlikely to involve federal law. And in any case, I expect the dissenters in Hobby Lobby could bring along one or more of the majority for a ruling that bans on sexual orientation and gender identity discrimination in employment meet RFRA strict scrutiny.

Posted by: JHW | Jul 3, 2014 9:55:05 AM

It seems to me that any effort to obtain an exemption from the anti-discrimination laws under the RFRA would be precluded by Brown v. Board of Education, which seems to eliminate the possibility of a less restrictive alternative.

Posted by: Jeff | Jul 3, 2014 2:15:41 PM

Brown dealt with race.

Consider an anti-discrimination law concerning disability, which currently only has to meet rational basis review. For federalism purposes, the USSC already treated that sort of thing different from gender, which has heightened scrutiny, if not as strong of scrutiny as race.

This is where the level of review for sexual orientation might be important. But, as noted by JHW, the dissenters + Kennedy very well might be uphold the employment law protections cited. OTOH, Kennedy didn't go along with the liberals regarding treating disability the same in the federalism cases.

Posted by: Joe | Jul 3, 2014 3:42:14 PM

That does present an interesting question, Joe. And, in the odd case where one's religion might conflict with the ADA obligations, compliance would seem to present a more substantial burden on religious exercise than the burden on Hobby Lobby, which seemed more of a financial burden than a religious one (given that they're already funding contraceptives through payments to the IRS). I wonder, though, whether the scrutiny applied to a particular class would really affect in any way the substantial burden/less restrictive means analysis of RFRA.

Posted by: Jeff | Jul 3, 2014 4:36:41 PM

The test involved also requires a compelling interest and that is one area where race won't be the same as any number of classifications. I'm unsure about how "odd" this will be -- for instance, a case went to the USSC where free exercise trumped a statute applied to protect someone with a disability.

Also, in practice, these tests are somewhat flexible. When something really really important like race discrimination is at stake, there is likely to be more of a chance in closer cases for the regulation to hold.

Posted by: Joe | Jul 4, 2014 9:15:45 AM

The only news in the Hobby Lobby decision is that ordinary corporations get the same RFRA protection as partnerships, sole proprietorships, and nonreligious nonprofit corporations. Thus, the question is whether those kinds of
businesses have been able to claim religious exemptions. I'm sure there must be law on that already.

Posted by: Eric Rasmusen | Jul 4, 2014 2:54:32 PM

Hobby Lobby also noted that RFRA did not merely "restore" things to before Oregon v. Smith. This allowed U.S. v. Lee to be disposed of rather easily.

http://balkin.blogspot.com/2014/07/not-bill-clintons-rfra.html

Posted by: Joe | Jul 6, 2014 12:15:14 PM

Eric Rasmusen: "the only news in the Hobby Lobby decision is that ordinary corporations get the same RFRA protection as partnerships, sole proprietorships, and nonreligious nonprofit corporations. Thus, the question is whether those kinds of
businesses have been able to claim religious exemptions. I'm sure there must be law on that already."

That's not 'only' news; it's something which (to my knowledge, IANAL, etc., has not been done before).

Posted by: Barry | Jul 10, 2014 10:07:09 AM

One does not lose their Right to Religious Liberty because they decide to establish a for profit Business.

Posted by: N.D. | Nov 2, 2014 7:11:14 AM

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