Editor's Note: Guest blogger Tobias Barrington Wolff writes and teaches in the fields of civil procedure and complex litigation, the conflict of laws, federal jurisdiction, and constitutional law. He is co-author (with Linda Silberman and Allan Stein) of Civil Procedure: Theory and Practice (Aspen, 3d ed. 2009) and his recently published articles include Civil Rights Reform and the Body (Harvard Law & Policy Review), Redeeming the Missed Opportunities of Shady Grove (with Stephen Burbank) (University of Pennsylvania Law Review), and Federal Jurisdiction and Due Process in the Era of the Nationwide Class Action (University of Pennsylvania Law Review). Wolff has served as counsel or counsel for amici curiae in many civil rights cases seeking equal treatment under law for LGBT people.
In the wake of the Hobby Lobby decision, opponents of LGBT equality are trying to reverse the progress we have made on workplace protections. A group of advocates including Rick Warren have published a letter seeking to pressure the White House to insert a broad and unprecedented religious exemption in the forthcoming executive order on federal contractors, and they point to Hobby Lobby as one principal justification.
It is important to understand that Hobby Lobby in fact rejects the argument that religious exercise can be an excuse for invidious discrimination. The following is the key passage of the decision, which the Court inserted specifically to respond to the suggestion that its ruling could authorize discrimination in the workplace:
"The principal 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. See post, at 32-33. Our decision today provides no such shield. 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."
Allow me to break down the significance of this passage -- what it says, and what it means in a larger context -- so that we can respond appropriately to these attempts to use Hobby Lobby to justify discrimination.
The Supreme Court says unequivocally in this passage that private workplace discrimination is a harm so severe that government has a "compelling interest" in eradicating that discrimination.
The Court uses the example of race discrimination to make this point, but it does not limit itself to race discrimination.
Discrimination based upon other suspect characteristics -- those that provoked either "heightened scrutiny" or "strict scrutiny" when government uses them to discriminate -- are controlled by the same principle. The Supreme Court has already issued a holding to that effect regarding private acts of sex discrimination in the context of the First Amendment, in a case called Roberts v. U.S. Jaycees. Thus, the government "has a compelling interest in providing an equal opportunity to participate in the workforce without regard to" sex and gender, as well.
Anti-gay discrimination by government is a suspect form of discrimination that provokes heightened scrutiny. That proposition has been strongly affirmed by the President and the Attorney General in their refusal to enforce DOMA and by the Second Circuit Court of Appeals in their decision in Windsor, the Ninth Circuit Court of Appeals in the SmithKline Beecham case, the California Supreme Court, the Connecticut Supreme Court and the New Mexico Supreme Court in their marriage equality rulings, and other courts as well. Therefore, government has a compelling interest in eradicating private antigay discrimination from the workplace.
Anti-trans discrimination is discrimination based upon sex and gender and hence subject to heightened scrutiny. That proposition has been strongly affirmed by the Obama Administration, for example in the Macy v. Holder ruling and in the recent clarification issued by the Labor Department, and by the Eleventh Circuit Court of Appeals in Glenn v. Brumby and other courts around the country. Therefore, government has a compelling interest in eradicating private anti-trans discrimination from the workplace.
In the above passage from Hobby Lobby, the Court also makes clear that laws and policies that prohibit discrimination in the workplace are "precisely tailored to achieve that critical goal". In other words, it is the act of discriminating itself -- which deprives the individual worker of "an equal opportunity to participate in the workforce" -- that inflicts the harm that the government has a compelling interest to eradicate. This passage strongly repudiates the argument that opponents sometimes make that there is no compelling interest in enforcing anti-discrimination laws if a person could find another job or patronize another business. Every act of private discrimination works a serious harm that the government has a compelling interest in eradicating.
In the days ahead, it is important that advocates and leaders strongly push out the message that the Hobby Lobby decision strongly supports the enforceability of anti-discrimination laws, even in the face of religious exemption arguments.
Hobby Lobby represents a vindication of the principle that anti-discrimination protections should trump religious objections in the workplace.