Hobby Lobby case: Discrimination in guise of freedom

Tacoma News TribuneMarch 28, 2014 

In a case with far-reaching implications, the U.S. Supreme Court heard arguments this week in a challenge to the requirement in the Affordable Care Act (ACA) that health insurance plans cover contraceptive care. The case also has the potential to redefine the scope of religious rights and create sweeping exemptions for businesses from a wide range of laws.

Not only do patients stand to lose, the general public served by other for-profit businesses also could be negatively impacted.

The ACA’s contraceptive coverage benefit has been in effect since Aug. 1, 2012; nationally, it covers more than 27 million women who are now able to get birth control with no out-of-pocket expense. In Washington, 638,000 women already have coverage for birth control thanks to this benefit, and this number is increasing as the law is implemented.

But in this case, for-profit corporations are challenging the benefit, claiming that they have a religious right to refuse to comply. Hobby Lobby, a national chain of crafts stores, and Conestoga Wood, a cabinet manufacturing company, claim that because their owners have religious views opposed to contraceptive coverage, these views “pass through” to the corporation and thus give it a license to discriminate against women by denying coverage.

Make no mistake: These are radical claims. The plaintiffs assert that they, as companies, rather than as individuals, have First Amendment rights to religious free exercise. Further, they claim that these rights enable them to refuse to comply with a law they disagree with based on those religious convictions.

Hobby Lobby’s claims are part of a troubling trend to cloak discrimination in the banner of religious freedom. This year, other states (Arizona, most notoriously) saw bills seeking to expand businesses’ rights to discriminate using the guise of religious freedom.

On their face, these bills can seem innocuous. The Arizona bill, for example, didn’t say “businesses have the right to discriminate.” Rather, it redefined the “persons” entitled to religious freedom protection under state law to include non-human “persons” such as corporations and other business entities. If these bills were to be enacted, a doctor could deny medical care to a sexual minority simply based on “sincerely held religious beliefs or exercise of religion.”

This is nothing more than discrimination, hiding under the sheep’s clothing of religion.

A federal court has already ruled in a case from Washington state currently pending before the U.S. Court of Appeals for the Ninth Circuit that a pharmacy has free exercise rights. In Stormans v. Selecky, an Olympia pharmacy (Ralph’s Thriftway), and individual pharmacists challenged a state pharmacy board rule that requires pharmacies to provide legally prescribed medications, regardless of any individual pharmacist’s religious or moral objection.

A Ninth Circuit decision agreeing with the trial court could potentially open the door to similar claims by other businesses that they should be exempt from certain laws, or worse, that the laws are wholly unconstitutional.

Religion should not be a license to discriminate, nor a license to avoid complying with otherwise neutral laws that apply to everyone equally. A boss’s religious belief should not trump a woman’s access to the health care she needs. The beliefs of a company’s owner should not entitle the company to refuse service based on discriminatory views.

In the noisy din of cries for religious freedom, let’s not forget those other cherished American ideals of equality, freedom from discrimination, and justice for all.

Lisa M. Stone is the executive director and Janet Chung is legal and legislative counsel for Legal Voice, a nonprofit that advocates for legal rights of women and girls in the Northwest. Along with the State of Washington, Legal Voice is defending the pharmacy rule at issue in Stormans v. Selecky.

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