Tuesday, July 1, 2014

Could the Hobby Lobby case lead to religious exemptions for race discrimination in employment?

Absolutely not.


  1. Thank goodness that Ann Althouse knows more about how the Supreme Court might view a claim for a religious exemption from anti-discrimination laws than Justice Ginsberg. I feel much better now.

  2. Do you find fault with her reasoning?

  3. It depends on what you mean by her reasoning. I'm not a regular reader of her blog but my general impression is that she probably agrees more with Justice Scalia than with Justice Ginsberg. Therefore, I suspect that she has an incentive to minimize the potential concerns that Justice Ginsberg raises. I also suspect that Justice Ginsberg has a better handle on how her colleagues might view the scope of their decision than Professor Althouse. Of course, whether Justice Ginsberg is accurately conveying her insights into her colleagues' thinking in her dissent is a different question.

    If you are asking whether I disagree with Professor Althouse that Title VII is the least restrictive way the government can accomplish the goals of ending racial discrimination, then the answer is yes. But I also thought that the idea that a for profit corporation could have religious beliefs was idiotic. It turns out that I was wrong about that since 5 justices on the Supreme Court saw it differently. So the fact that I don't really fault her reasoning does not suggest to me that the Hobby Lobby majority agrees with that reasoning.

    Perhaps a more interesting question is going to come in the form of for-profit corporations now claiming that state laws protecting gay people from discrimination force the company to violate its religious beliefs because it can't refuse to hire gay people. Will Federal courts find that the 1st Amendment rights of the corporation trump those state laws?

    1. It's worth noting, perhaps, that only 2 of the justices were willing to hold that for-profit companies didn't qualify as "persons" under RFRA.

  4. Oops, the first sentence of my second paragraph should end with the word "no" not "yes."

  5. I am willing to bet, and give you 5 to 1 odds, that no federal appellate level court (including the Supreme Court) will ever find that corporations can claim an RFRA exemption to TItle VII, precisely for the reasons Althouse articulates. The only counter-argument, which you articulate well, boils down to absolute cynicism.

    Indeed, any challenge to the racial anti-discrimination laws under RFRA would be frivolous on its face, since the Supreme Court spoke directly to them: "The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." That's a quote from a majority opinion of the U.S. Supreme Court. It's technically dicta, but good luck with that.

    The question on religiously-motivated discrimination against gays is somewhat more interesting, but there are some things to keep in mind. First, under the Smith case, anti-discrimination laws are neutral laws of general applicability and therefore no 1st amendment free-exercise claim is possible. The outrage against Smith is why RFRA was passed, and it is RFRA under which Hobby Lobby pressed its claim. It's important to remember that Hobby Lobby is a statutory, not a constitutional case.

    It's also important to remember that RFRA was held unconstitutional insofar as it purported apply to state laws (that's the City of Borene case). After that case, RFRA was amended so that it explicitly applies only to federal laws. So there is no possibility (under current, well-established law) that state anti-discrimination laws could ever be held to violate either the First Amendment or RFRA.

    That said, my understanding is that many states have analogs to RFRA. So you could see challenges under state-law RFRAs to state anti-discrimination laws. But there is little reason to think those challenges would succeed, as Althouse's reasoning is unimpeachable and the Supreme Court has spoken directly against them in the only case that could possibly be used to think they might succeed.

    The currently live issue is that Obama has issued (or is about to issue) and executive order banning discrimination on the basis of sexual orientation by entities that do business with the government. A RFRA challenge to that is conceivable. Perhaps there would be some wiggle room to argue that an executive order is easier to challenge than an act of Congress, as far as establishing a compelling government interest, or something like that. But, on the other hand, such challenges would face additional hurdles in that there is no right to do business with the government, and the government generally has a right to put reasonable conditions on those with whom it does business. Indeed, I've represented a company that the government tried to blacklist capriciously, and there was essentially no appeal except to the government's own capricious agents. (Luckily I was able to overwhelm them with reason.)

    But, anyhow, if we're just counting votes, is there any conceivable doubt that Justice Kennedy and the four liberals would uphold anti-discrimination laws against a RFRA claim?


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