Last week, amid the non-stop news about Donald Trump’s outrageous actions and comments, it almost went unnoticed that Justice Samuel Alito sent a stern warning to those of us who are gay, lesbian, bisexual, or transgender: You’re waging a war on religious freedom―and you must be stopped.
Alito, giving a speech to a Catholic group in New Jersey, even bragged that he had predicted this supposed persecution by LGBTQ people of religious people, referencing his blistering dissent in the landmark marriage equality ruling, Obergefell v. Hodges, in 2015, in which he wrote that the decision would be used to “vilify those who disagree, and treat them as bigots.”
“We are seeing this come to pass,” he said, proclaiming that “a wind is picking up that is hostile to those with traditional moral beliefs.” Alito further predicted there would be “pitched battles in courts and Congress, state legislatures and town halls,” and he commanded the faithful to “evangelize” about the “issue of religious freedom.”
Taken together with the beliefs about religious liberty of Trump Supreme Court nominee Neil Gorsuch―whose confirmation hearings began this week―it’s not wrong to become alarmed about the Supreme Court carving out religious exemptions on LGBT rights and allowing for broad-based discrimination.
To get an understanding about that―and the influence that Gorsuch will have if he’s confirmed―we need to go back to the Supreme Court’s Hobby Lobby decision, which allowed the arts and crafts chain to opt-out of certain kinds of contraception based on the owners’ religious beliefs. The decision spurred much outrage by progressives and a scathing dissent from Justice Ruth Bader Ginsburg.
There were and are fears that the ruling would open the door to broader discrimination against women and other groups. Some have hoped, however, that statements in Alito’s majority decision, and in Justice Anthony Kennedy’s concurrence, would prevent that. While very concerned about the ruling’s implications for women, and the possible implications for LGBTQ people, Jennifer Pizer, Senior Counsel and Law and Public Policy Director at the LGBT legal group Lambda Legal, noted that Alito appeared to be clear in stating that the decision couldn’t be used to allow for racial discrimination:
Justice Alito’s opinion repeatedly assures that his analysis does not sanction discrimination. He says, Justice Ginsburg’s dissent “raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield.” He then explains that there is “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.”
And, while Alito might only have been referring to racial discrimination, Justice Kennedy’s concurring decision was much more broad in that regard, as Pizer notes his bottom line: “no person may... in exercising his or her religion... unduly restrict other persons.”
While none of this excused the horrendous ruling for women’s access for contraception, and while not a great reassurance by any means, the hope was that these statements show there are some limits the court would keep in place.
And that brings us to Gorsuch ― who wrote a concurring opinion in Hobby Lobby on the Tenth Circuit Court of Appeals, in the case the Supreme Court affirmed. Gorsuch provided no such limits.
In its analysis of Gorsuch as “unacceptable” and “dangerous” to LGBTQ rights, Lambda Legal underscores how much more extreme he is than Alito and certainly Kennedy on this issue:
Judge Gorsuch has supported religious exemptions from laws based on “complicity”—the belief that adhering to the law makes the objector complicit in the allegedly sinful conduct of others...Whereas the Supreme Court decision in Hobby Lobby made concerns about the impact on real people central, Judge Gorsuch did not address the harmful effects of denying access to reproductive healthcare on female employees and dependents. Instead, his sole concern was for the religious objectors who alleged that “ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows.”
The group concludes that, “his is a vision of a society where religion prevails over law, and where the concerns of religious parties override the concerns of other citizens,” and for that reason places Gorsuch and his idea of religious liberty far to the right of most of the current Supreme Court justices. Last month, I explained in two pieces that Gorsuch, like the late Justice Scalia, who Gorsuch revered, adheres to the judicial philosophy of originalism, and for that reason likely believes sodomy laws in the states are allowable and that marriage, too, should be left to the states. (And he wrote that issues such as gay marriage should be left to the voters and legislatures, rather than the courts, while he was a practicing lawyer in 2005).
Gorsuch also joined an opinion barring a transgender prison inmate from receiving medically necessary hormone treatment. His stated philosophy, his decisions and his writings render gay sex ― and LGBTQ people ― as not protected by the U.S. Constitution, no matter that he reportedly has gay friends who speak highly of him. The issues of marriage equality and sodomy laws may not be opened up again, since some have argued they’re settled law (but keep in mind anything can be revisited by the court over and over again, as we’ve seen, from abortion to affirmative action). But it’s the impact of “religious liberty,” and many cases which will head to the high court, that could deem LGBTQ Americans second class citizens.
If Justice Alito was indeed including LGBT people in his caveats that Hobby Lobby could not be used to discriminate beyond the specific issue of certain forms of contraception ― and that’s a big if, since he wrote only of racial discrimination ― his dissenting opinion a year later in Obergefell may show a shift.
Indeed, his speech last week, using that decision, warned that LGBTQ rights have gone too far, somehow infringing on religious liberty ― and he’s clearly speaking of the bakers, the florists, the photographers and perhaps even the Kim Davis’s who claimed their rights were threatened ― and that LGBTQ rights have to be reined in. And Alito has argued that it should be illegal to compel pharmacies to dispense emergency contraception, so his view on this is much broader.
With Gorsuch on the court it seems certain Alito would get more help in making the case that their should be religious exemptions when it comes to public accommodations ― businesses ― and perhaps even government employees in the area of service to LGBTQ people and others. That’s why Gorsuch’s idea of religious liberty is dangerous. When we add what Republicans did to Merrick Garland, not even allowing hearings and a vote on President Obama’s nominee to the court, it’s absolutely incumbent on the Senate ― and Democrats, using the filibuster ― to vote down Gorsuch’s nomination.
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