The Supreme Court ruled in favor of a suit brought by the owners of Hobby Lobby and furniture maker Conestoga Wood Specialties ruling that companies cannot be forced to offer insurance coverage for birth control methods that the family-owned private companies object to for religious reasons.

The Supreme Court ruled in favor of a suit brought by the owners of Hobby Lobby and furniture maker Conestoga Wood Specialties ruling that companies cannot be forced to offer insurance coverage for birth control methods that the family-owned private companies object to for religious reasons.

A Supreme Court case about the Affordable Care Act has spilled into the debate over gay rights. In Burwell v. Hobby Lobby, the justices ruled that certain companies do not have to include birth control in their health plans under the ACA if owners object for religious reasons. The opinion ignited a broad discussion about how to balance religious freedom and civil rights, including what legal protections can be extended to gay men and lesbians. Now faith groups have called for President Barack Obama to exempt them from rules about employment bias and gay rights advocates express fears of eroding protections. A conversation about the fallout of hobby lobby.

Guests

  • Sarah Warbelow legal director for Human Rights Campaign.
  • Edward Whelan president of the Ethics and Public Policy Center, a contributor to National Review Online Bench Memos blog, a lawyer and former law clerk to Supreme Court Justice Antonin Scalia.
  • Joan Biskupic editor in charge for legal affairs, Reuters News. She has written biographies on Sandra Day O'Connor and Antonin Scalia.

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Last week, the Supreme Court ruled that some companies could opt out of part of the Affordable Care Act that clashes with an owner's religious beliefs. Gay rights advocates now fear the decision delivered a blow to protections for the gay and lesbian community. Here in the studio to talk about efforts to balance religious freedom and civil rights: Joan Biskupic of Reuters, Edward Whelan of the Ethics and Public Policy Center, and Sarah Warbelow of the Human Rights Campaign.

  • 10:07:33

    MS. DIANE REHMI'm sure many of you will want to join the conversation. Give us a call at 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or Twitter. Thank you all for being here.

  • 10:07:53

    MS. JOAN BISKUPICThank you, Diane.

  • 10:07:54

    MR. EDWARD WHELANThank you.

  • 10:07:55

    MS. SARAH WARBELOWIt's such a pleasure to be here.

  • 10:07:56

    REHMThank you. Joan Biskupic, recent court decisions from the Supreme Court seem to draw a line between religious rights and civil rights. Talk about that.

  • 10:08:11

    BISKUPICWell, you know, we've watched over the years as government has balanced religious freedom with reproductive rights and abortion, and now we're in this venue seeing the tricky balance that comes into play with gay rights and healthcare specifically in the recent rulings.

  • 10:08:25

    BISKUPICJust to remind your listeners what happened over the last couple weeks, the Supreme Court, on June 30, issued its closely-watched Hobby Lobby case, and, for the first time, by a 5-4 vote, said that for-profit corporations could be protected by a 1973 federal statute known as the Religious Freedom Restoration Act. It was, on its face, something we were all watching to see how the court would regard for-profit corporations.

  • 10:08:56

    BISKUPICIn the law at issue, it was never explicit whether they would be covered or not covered. The law just said that people's -- a person's religious freedom could not be impinged by a federal law. And what the justices ruled was that these for-profit corporations, closely held corporations, family-run corporations that had very deep religious beliefs on the part of the owners, did not have to abide by a part of the Obama healthcare law known commonly as Obamacare, the contraceptive mandate.

  • 10:09:26

    BISKUPICSo what the justices said with the more conservative jurors taking the lead there is that they could have an exemption from that. That inspired a very heated dissent from the more liberal members, Justice Ginsburg taking the lead saying this was a decision of startling breadth, that -- she said if Congress had intended for-profit corporations to be exempt from this religious freedom law, it would've said so explicitly.

  • 10:09:54

    BISKUPICSo that had its own reverberations across the country. But what has happened since is that is has played not just into the whole reproductive rights issue, but into the gay rights issue because, as we all know, there would be several employers out there who might want to assert that they, because of their religious beliefs, should be exempt from some sort of federal law and that this might pave the way for that.

  • 10:10:20

    BISKUPICSo I think that's the main thing you want to talk about here. But I just want to add one little postscript that arose after the justices' decision in Hobby Lobby in the 30th. Separately, on July 3, again, now, still talking about the contraceptive mandate, the justices, by 6-3, said that a nonprofit religious-based school, Wheaton College in Illinois, didn't have to abide by, at this point, temporarily, did not have to abide by a certain part of the exemption in terms of the forms that you fill out if you're a church or a nonprofit seeking an exemption.

  • 10:10:55

    BISKUPICAnd that inspired another heated dissent on the part of three of the justices, all of whom happen to be the female justices written by Sonia Sotomayor saying, look what you just said in Hobby Lobby saying that there were some alternatives here you're not coming through with. So right now, the discussion is very heated and the main thing people are looking at is how will this play out down the road for gay rights activists and for religious organizations who feel they need an exemption from various laws.

  • 10:11:24

    REHMJoan Biskupic, she's editor in charge for legal affairs at Reuters News. Ed Whelan, how do you see these rulings and what they mean for religious freedom?

  • 10:11:41

    WHELANWell, for starters, I think that the court's ruling in Hobby Lobby was a very narrow ruling, a very straightforward ruling. It's true that there hasn't been a court ruling before on the question of exercise of religion by a closely-held for-profit corporations, but the Religious Freedom Restoration Act extended these protections to the term "persons," which federal law defines to include corporations.

  • 10:12:07

    WHELANIndeed, the Obama administration concedes that nonprofit corporations have these protections and it's only -- there are only two justices, Justice Ginsburg and Justice Sotomayor, who argued that for-profit corporations have no protections under the Religious Freedom Restoration Act. And think how remarkable it would be, say, that a kosher deli that incorporated could be required to serve non-kosher food and wouldn't have any rights at all under this law, merely by virtue of its having incorporated.

  • 10:12:36

    WHELANI think there's a good reason why Justices Kagan and Breyer refused to join that portion of Justice Ginsburg's opinion. More broadly, I think that the court's opinion, as I say, is quite narrow. The court relied heavily on the fact that on the government's own account of things there was a less restrictive alternative available, therefore the government couldn't meet the stringent test under the Religious Freedom Restoration Act.

  • 10:13:02

    WHELANThat test required the government to show that the HHS mandate itself was the least restrictive alternative, but because the government had offered this -- don't mean to get too much into the weeds here, but this so-called accommodation to religious nonprofits, the government couldn't explain why it couldn't offer that same arrangement to for-profit businesses.

  • 10:13:23

    REHMYou mean, have the government supply contraceptives.

  • 10:13:28

    WHELANWell, that's another least restrictive alternative, less restrictive alternative that the majority identified as well. But no, I'm referring specifically to this so-called accommodation that the Obama administration has offered to religious nonprofits. As Joan mentioned, this was the matter that was the topic of the Wheaton College ruling, as some folks who are following this closely may remember, the Little Sisters of the Poor...

  • 10:13:52

    REHMYes.

  • 10:13:52

    WHELAN...ruling around New Year's Day. But what's essential to have in mind is all that the court said in Hobby Lobby is that the government had failed to satisfy its burden of showing that the mandate itself was the least restrictive alternative.

  • 10:14:09

    REHMAll right.

  • 10:14:09

    WHELANIt didn't bless the accommodation. So that's, again, I think it's a sound ruling, very straightforward and I think it should've been unanimous.

  • 10:14:18

    REHMEdward Whelan, he's president of the Ethics and Public Policy Center, a contributor to National Review online Bench Memos blog. Turning to you, Sarah Warbelow, was the Hobby Lobby case something that gay rights activists were following closely?

  • 10:14:43

    WARBELOWAbsolutely. Whenever the court takes on issues of religious liberty, it has the potential to have ramifications down the line for LGBT people. I think that we are incredibly fortunate. The decision could have been much broader. In the immediate aftermath, we know that this will have consequences for lesbian and bisexual women who needs birth control as well as some transgender men who continue to use birth control for a whole complex variety of reasons, including not wanting to have a pregnancy, but also for medical reasons.

  • 10:15:17

    WARBELOWThat being said, the court was very cautious in the majority opinion to say when it comes to nondiscrimination laws, this should not be seen as a shield for those who wish to utilize their religious beliefs to discriminate in the employment context. They gave race as an example, but they didn't limit it to race. They were very clear that they were simply utilizing it as an example.

  • 10:15:47

    WARBELOWToday, we don't have explicit reliable federal laws that prohibit discrimination in employment, housing or public accommodations against LGBT people. So people do experience discrimination, but we're working on legislation, legislation that has a serious chance of passage, that would protect people. And we want to insure that RFRA would undermine those basic core protections.

  • 10:16:14

    REHMSo how do you read what the court has done and its effects on gays and lesbians?

  • 10:16:26

    WARBELOWWe read it as something that is incredibly narrow, but once you've determined that for-profit corporations are entitled to have religious rights, it starts us down a slippery slope.

  • 10:16:40

    REHMWhat kind of slippery slope?

  • 10:16:43

    WARBELOWAbsolutely concerned, particularly in the public accommodations arena. So that's when an individual who's going to pick up an anniversary cake to celebrate -- they're a same-sex who's been married, a transgender person wants to walk into a shop, and she's just transitioned and wants to buy a new dress for herself and an employer -- excuse me, a business owner says, I don't want to serve you. I disagree with you. I find you morally reprehensible, and I just don't think I should have to serve you.

  • 10:17:16

    WARBELOWOnce we pass laws at the federal level that provide those protections -- and they're already in place in 21 states -- permitting religious liberties in the for-profit public sector, has the potential to allow for significant discrimination.

  • 10:17:32

    REHMSo you are concerned that these recent developments and decisions from the court could, in some way, impinge on the civil rights of gays and lesbians.

  • 10:17:50

    WARBELOWThat's absolutely right. We have to see how things move. We're hopeful that the courts will understand that these are different issues, but it certainly opens up the possibility.

  • 10:18:00

    REHMBut you're saying that, right now, there seems to be a blending of those issues.

  • 10:18:08

    WARBELOWIndividuals who want to utilize religion as a basis for discrimination are certainly feeling emboldened by this decision.

  • 10:18:16

    REHMSarah Warbelow, she's legal director for the Human Rights Campaign. Short break here. When we come back, we'll talk further, take your calls, your comments. Stay with us.

  • 10:20:00

    REHMAnd welcome back. In this hour, we're talking about recent court decisions that somehow bring into question the line between civil rights and religious rights. Here's a comment from the drshow website from Jimmy Jean who says, "I'm confused. I thought religious freedom was the ability to worship as you choose and not to impose your religion on someone else." Joan Biskupic.

  • 10:20:42

    BISKUPICWell, it's -- that's a good point, but it's much broader. You know, we've -- the government has -- the nation has believed in sort of religious conscience clauses at the same time that it isn't -- you might want to exercise your religion not just as it would affect you but as it would affect you in a larger scheme. And this case, for example, the issue was whether the owners of these two -- of these businesses, that their own religion would be compromised if they in any way supported contraception for their -- certain kinds of contraception for their employees.

  • 10:21:16

    REHMAnd here's another email from John who says, "I don't get it. If you don't like Hobby Lobby's position, then boycott or find another employer. What am I missing?" Joan?

  • 10:21:34

    BISKUPICWell, it's -- it might not be so easy. Hobby Lobby is a very large company. It has many, you know, thousands of women employees. And, you know, it's -- people can't move around that easily, and that's sort of not the point. The federal government has said -- whether you like Obamacare or not, the federal government has said that employers need to provide this kind of contraceptive coverage through their insurance.

  • 10:21:56

    BISKUPICSo the issue is more joined at a different level than right there on the ground, what a particular woman might do. And there was some concern certainly expressed by Justice Kennedy during oral arguments about how third parties might be affected. And Justice Ginsburg and her dissent talked about that too.

  • 10:22:12

    BISKUPICBut I just want to pick up on something Sarah had said earlier about how this is all percolating up and how there is a lot of concern about how this was going to play out. Because if you just step back, the religious Freedom Restoration Act covers -- it's a federal law that covers actions at the federal level. But, meanwhile, you have a lot of things going on in the states. And there are a lot of state governments passing these kinds of protections, but also companies in the states wanting to act in certain ways.

  • 10:22:40

    BISKUPICAnd we recently had a case that came up to the Supreme Court. And the Justices decided not to get involved. But I think it shows the kinds of issues that are out there. And it was a photographer who did not want to have to shoot the wedding of...

  • 10:22:54

    REHMA gay couple.

  • 10:22:55

    BISKUPIC...yes, of a gay couple. And that happened to violate in New Mexico New Mexico's state law, anti-discrimination law. And I think that that, even though it was taking place just in New Mexico, it got a lot of national coverage. And it sparked a backlash in some places.

  • 10:23:11

    REHMWell, let's be sure to say that the gay couple sued the photographer. Did they not?

  • 10:23:19

    BISKUPICWell, the issue that came to the Supreme Court or was -- and whether that action had violated the New Mexico anti-discrimination law, right. But you're going to have a lot of those kinds of issues where you see a gay couple, you know, through -- you know, wanting a certain baker or any kind of private service and saying, we shouldn't be discriminated against just the way, you know, somebody might've been discriminated against in the '60s or '70s based on race or based on sex.

  • 10:23:44

    BISKUPICSo these issues are very real, and that's why many of the groups that are counterparts to Sarah's are more anxious about Hobby Lobby and more anxious about what might be moving up through the federal government for anti-discrimination protections. How will this play out in the face of maybe more regard these days for religious exemptions?

  • 10:24:02

    REHMEdward.

  • 10:24:03

    WHELANWell, I think if we look at the broader picture, I think the real concerns that Sarah has been raising are more about the Religious Freedom Restoration Act itself and the state versions of that federal law and not so much about the Hobby Lobby opinion, which I think she correctly characterized as very narrow. And I think it's fair to say that really, since the late 1990s, gay groups have had very strong concerns about these religious freedom acts.

  • 10:24:31

    WHELANSo I think what you see in the broader picture is a clash between a progressive secularist ideology and the traditional religious belief, a clash between progressivism and the classical liberalism. And that clash plays out -- I think people on both sides would agree in an especially contentious way when it comes to issues of sexual morality, also, of course, on issues of protection of unborn human life. So I think that's why we're seeing these clashes and exactly how they get resolved is going to be complicated overtime.

  • 10:25:13

    WHELANI want to emphasize the fact that someone might be able to bring a claim under the federal act or under the state act says nothing at all about whether they're going to prevail. As, I think, Sarah noted, the court said very little on this question, Hobby Lobby indeed, the big issue of whether there is a compelling interest that the government showed in providing contraceptive access without cost sharing. There's one that the court did not need to decide is that we'll assume that that interest exists. The government loses anyway.

  • 10:25:48

    WHELANSo exactly how the court would address that important compelling interest test in, say, cases involving gay rights is, I think, very hard to determine at this point. So, yes, there may be claims. They may well lose...

  • 10:26:02

    REHMThere have been claims.

  • 10:26:04

    WHELANYes. And there will be more. I would say on the photography case from New Mexico is a very interesting one. There is a state human rights commission that sort of lowered the boom on the photographers after a complaint was filed. And, if you think about it -- and I think this just has to be part of the overall calculus -- I'm not suggesting it decides the case one way or another, but who wants as their photographer for some sort of, you know, important ceremony someone who's hostile to the basic...

  • 10:26:34

    REHMOK. But let me give you a different kind of example and see what the reaction is. Suppose I am a homeowner, and I am renting my home. And a gay couple comes to me, and I live in New Mexico or one of these states that does have some protections for me as a homeowner. And I say, my religion tells me I do not accept gay marriage. Am I allowed, under the Supreme Court ruling, to refuse a gay couple to rent my home, Sarah?

  • 10:27:29

    WARBELOWAbsolutely not. The Supreme Court decision, Hobby Lobby, did not address these core civil rights laws that are in place in the states. Now, I will say that the vast majority of state laws that regulate housing have exemptions for individuals who are renting out one home, their own home if they reside on the premises. But what we're talking about in most cases is someone who owns a large apartment complex, who owns 10 or 15 houses and then they're discriminating against same-sex couples, which is a very different scenario.

  • 10:28:06

    WARBELOWYou know, we've done a balancing test in this country. We've taken into account that there are circumstances where maybe want to give a little more leeway to that individual who really is acting in a non-commercial capacity. But when you open yourself up as a business and whether that's in traditional services, whether that's in housing, you should be treating all people the same based on their ability to pay, based on their qualifications as a renter, not on who they are.

  • 10:28:41

    REHMAll right. And let's take a call now from Isaac Dovere. He is the senior White House reporter at Politico. Good morning to you, Isaac.

  • 10:28:57

    ISAAC DOVEREGood morning, Diane.

  • 10:28:58

    REHMCan you talk a little bit about how the White House plans to respond to these Supreme Court decisions, how you feel they will proceed?

  • 10:29:14

    DOVEREWell, the question over how Hobby Lobby would be decided was exactly the reason why the White House did not move forward with this executive order, even when they announced that the president was ready to sign it. They were waiting to see where the decision came down. And then once that was done, how they would write the language of the executive order to deal with the nondiscrimination issue ahead for government contractors.

  • 10:29:43

    DOVEREThey are not sure where things are going to land quite yet. And part of that is still interpreting the decision and figuring out all the different ways that it could be challenged. And part of that is trying to reach this balance between religious freedom and the opening of rights that President Obama has spent a lot of time during his presidency struggling with.

  • 10:30:07

    REHMAnd what about congressional Democrats who, according to The Post this morning, are vowing to bypass the Supreme Court decision in the Hobby Lobby case. What kind of legislation are they trying to move forward?

  • 10:30:28

    DOVEREWell, there is an attempt to take care of some of the issues that are involved in what Hobby Lobby decided in terms of the contraception act that -- and sorting through the religious exemption a little bit more. But as far as the issue of nondiscrimination against LGBT people, the reality is that there's a bill that passed in the Senate that was going nowhere in the House. And that continues to have really no hope of moving in the House, at least for the moment. And so legislatively I don't think we're going to see the issue addressed in terms of gay discrimination.

  • 10:31:08

    REHMAnd what about the question of contraception for women? There seems to be a great deal of interest on the part of a number of people in Congress on that.

  • 10:31:26

    DOVEREWell, sure, but of course what that would mean is amending Obamacare in a way that would be toward where the president and Democrats wanted to go, which on both of those fronts seems like a very difficult task to make of the House Republicans at this point when you look at the reality of how things have gone the last couple of years.

  • 10:31:48

    REHMSo it's your understanding that the White House has not quite reached its own decision on where to come down with an executive order. And chances of congressional action right now are fairly slim.

  • 10:32:10

    DOVEREI think that that's right. I think chances of congressional action on really anything at this point are slim, and on these issues even slimmer, if that's possible. As far as the president's own decision here on the executive order, the White House did something very unusual about this, which is that they announced that he would sign it without telling us what exactly it was that he would sign or when he would sign it. And that was almost a month ago at this point.

  • 10:32:38

    DOVEREWe don't know exactly when the president will go forward with this. But it will take some work to figure out what to do still with balancing the Hobby Lobby decision and the religious pushback that it's been getting.

  • 10:32:52

    REHMAll right. Thank you so much for joining us. Isaac Dovere, he's senior White House reporter at Politico. And you're listening to "The Diane Rehm Show." All right. It's time to open the phones, 800-433-8850. Let's go now to Grace in Tulsa, Okla. You're on the air.

  • 10:33:22

    GRACEGood morning, Diane.

  • 10:33:23

    REHMHi.

  • 10:33:24

    GRACEI live in Tulsa, Okla. Of course, Hobby Lobby is based out of Oklahoma City. Saturday morning, I attended a rally or a protest in front of one of the Hobby Lobbies. I was actually quite surprised. We had at least 100 women and men, maybe even over. And the key thing was that we had all ages of women and all ages of men. And the majority of the women and men that I spoke with saw this as a two-fold thing.

  • 10:33:54

    GRACEOne is that it has really -- it's a for-profit thing. I think what the panel had said earlier was key. It's not a Catholic charity, which could be understood. The second thing was the majority of everybody saw this as, once again, a defeat to women and their right to have a reproductive system that is theirs and their decision, which goes all the way back to the Margaret Sanger era and before of when the fight has been, you know, just overwhelming them. Every time it seems like that you gain ground, then something like this happens. And I think the court did open a Pandora's Box.

  • 10:34:38

    REHMAll right. Grace, thanks so much. Go ahead, Edward.

  • 10:34:42

    WHELANWell, let me put some things in context. First of all, Hobby Lobby objected to providing only four of the FDA-approved birth control drugs and devices, four that either do or might operate to kill human embryos. It is providing, with no co-pay and no deductible, the remaining contraceptives. Further, I'd emphasize that this HHS mandate, which, by the way, is a regulatory action -- it's not part of the law that Congress passed -- it's pursuant to the law, but it's a regulatory creation -- created an exemption for grandfathered plans. Millions and millions of employees are not getting these guaranteed benefits because the plans are grandfathered.

  • 10:35:34

    WHELANThe Obama Administration offered an exemption to religious employees and this accommodation for religion nonprofits. The Obama Administration is happy to see people thrown into the exchanges where they may or may not choose to obtain insurance at all. Obviously if they choose not to obtain insurance, they won't have this full range of supposedly cost-free benefits. So I think there's a little bit of hysteria and hyperbole, I think, from the caller.

  • 10:36:04

    REHMJoan.

  • 10:36:05

    BISKUPICI would just want to mention that part of it is there's so much uncertainty about how this is going to play out. Isaac on the phone call earlier made the point that the administration was waiting to see this ruling to see how it would incorporate it into the executive order involving nondiscrimination against gays and lesbians. And I think what Hobby Lobby did was further complicate things.

  • 10:36:25

    BISKUPICWe saw -- not only did several of the gay civil rights groups pull out of discussions over the federal statute, the Employment Nondiscrimination Act. But we also had a very important part of this, a July 1 letter written by religious and civil groups -- civil -- civic leaders who really want a religious exemption built into the executive order stressing how important this is.

  • 10:36:56

    BISKUPICAnd I think they were -- I think both of our other panelists have talked about, you know, who's emboldened here and who's not. But I think that a lot of religious leaders definitely have been emboldened by this. And they've mentioned bringing this altogether. Kind of a lot of the anxiety that still exists out in America over same-sex marriage, which is in the backdrop of everything too, saying in that letter to President Obama, look, when you first ran for president, you were even ambivalent about this. So I think this is -- actually it complicated things more than it's helped this ruling on the Nondiscrimination Act.

  • 10:37:29

    REHMJoan Biskupic of Reuters News. Short break, we'll be right back.

  • 10:39:59

    REHMAnd welcome back as we talk about recent Supreme Court rulings, the concerns of many about the line between religious freedom and civil rights. Let's go first to Richard. He's in West Palm Beach, Fla. Hi. You're on the air.

  • 10:40:24

    RICHARDThank you very much. My question is pretty simple and straightforward. If the Supreme Court decisions allows religious beliefs to opt out of the healthcare plan or parts of it, would this also enable someone who, say, is a Christian Scientist to not provide any coverage because of their beliefs in prayer can cure all health issues?

  • 10:40:47

    REHMInteresting question, Joan.

  • 10:40:48

    BISKUPICRight. And the answer is essentially no because -- and this came up both during oral arguments and then in the dueling opinions. The way the law works is that the employer has to have -- start with, you know, religious beliefs, some reason that he would want to exempt. But then the government can come in and say, look, we have a compelling interest here to override that.

  • 10:41:10

    BISKUPICAnd in cases of, let's say, blood transfusions or vaccinations, you know, presumably the government's compelling interest there is -- would be evident, and it wouldn't threaten what we see as routine health issues. Although, Justice Ginsberg, I have to say, in her dissent, did raise questions about things like vaccinations. But I think that at this point…

  • 10:41:30

    REHM(unintelligible) kind of broad this decision was.

  • 10:41:33

    BISKUPICRight. And she, in fact, you know, both of my fellow panelists here have talked about it as being narrow, but, you know, there is definitely a contrary view that it was not narrow. And that…

  • 10:41:43

    REHMExactly.

  • 10:41:43

    BISKUPIC…it is much more of a bombshell. And she, as I said, used the expression, "it's of startling breath."

  • 10:41:48

    REHMAll right. Here's an email from Jeremy. He says, "After this decision, what, if anything, is in place to prevent any organization or business to refuse to serve someone and use religious beliefs as justification? For example, can a restaurant refuse service to a gay couple because the owner does not believe in this kind of relationship? Can a school refuse to admit students who fit into a certain group or exhibit behaviors that may be objectionable to one religion or another?" Sarah?

  • 10:42:36

    WARBELOWYou know, right now, this is very much a state by state issue. So many people don't realize. They just assume that LGBT people are protected under the law from employment discrimination, housing discrimination, and in these public accommodation contexts. We've done some recent polling that have found as many as 87 percent of Americans think these laws are already in place. But, in reality, there are only 21 states that protect people on the basis of sexual orientation in these types of situations and fewer than that that protect people on the basis of gender identity.

  • 10:43:09

    REHMSo if the president has to write an executive order to somehow clarify what's gone on here since these decisions, how is he going to write that?

  • 10:43:27

    WARBELOWWell, I don't want to speak for how the White House is going to do it, but what his mission originally was -- is not super broad anyway. It's federal contracting. And I think what they were looking for is, you know, just how much to build in any kind of religious exemption as already is existed in the post-legislation.

  • 10:43:43

    WARBELOWAnd I think that what he has now before him in the wake of Hobby Lobby is a stronger desire on the part of religious groups to have a very robust religious exemption, and on the part of groups that might be more concerned about whether the exemption will swallow the entire protection, more limited.

  • 10:44:01

    REHMAnd here's an email from Bill in Dallas, Texas, on that very point. He says, "Please discuss how religious liberties, in the context of these cases, could trump non-religious liberties, in other words, freedom from religion and the recently blessed liberties of the religious." Edward?

  • 10:44:33

    WHELANWell, that conflict or clash is exactly what Congress addressed in 1993, when it enacted, by overwhelming majorities, nearly unanimous in both Houses, signed into law by President Clinton, the Religious Freedom Restoration Act. And the Religious Freedom Restoration Act sets forth a standard to be applied by courts in all these cases. One of its virtues is it doesn't pick winners. It doesn't say we're going to favor this sort of claim over that sort of claim. It says here's the basic standard that the government must meet if it's going to burden religious liberty.

  • 10:45:10

    REHMGive me an example.

  • 10:45:13

    WHELANWell, an example would be, I suppose, the case that gave rise to the Religious Freedom Restoration Act in the first place, involving the sacramental use of peyote. There was a follow-on case involving some hallucinogen called, I think, ayahuasca -- I'm not sure I'm pronouncing that correctly. But the court applying the Religious Freedom Restoration Act in that second case held that -- I believe it's a Native American tribe had a right to use this sacramental drug, notwithstanding the federal drug laws.

  • 10:45:47

    WHELANNow, I want to emphasize though that, as Joan was saying before, the American concept of religious liberty has never confined religious liberty to what happens inside a church on the Holy day. Americans have always had the right to live out their lives consistent with their religious faith, within broad bounds. And what the Religious Freedom Restoration Act does is set a standard that tries to define those bounds.

  • 10:46:16

    WHELANAnd it says, you know, specifically it says, government, if you're going to substantially burden a person's exercise of religious liberty you need to have a -- to do so in order to serve a compelling interest and you need to adopt the least restrictive means to do so.

  • 10:46:30

    REHMSarah?

  • 10:46:30

    WHELANAgain, everyone agreed to this back in '93.

  • 10:46:34

    REHMSarah, do you want to comment?

  • 10:46:35

    WARBELOWSure. I, you know, I think the challenge here is that we are losing sight of the harm principle and that all too often the religious liberties of some have increasingly been allowed to trample on the civil rights of other individuals. And I do think we are, as you said, seeing this clash. It's something that's going to play out for many years.

  • 10:46:58

    WARBELOWI am buoyed by the fact that -- particularly when we're talking about these cases in which same-sex couples were married or seeking out wedding-related services -- we have court after court in the states saying these are core American values of non-discrimination and these private owners do not get to exercise religious liberties in harming individuals by turning them away. That being said, as we approach more conservative courts and courts who have different ideas, that balance may shift.

  • 10:47:30

    REHMAll right. Let's go to Birmingham, Ala. Hi, Kristy.

  • 10:47:35

    KRISTYYes. Thank you for taking my call.

  • 10:47:37

    REHMSure.

  • 10:47:39

    KRISTYI think that this discussion needs to take a further step back in the legal analysis. Your guest made an analogy to a deli and said, almost as an aside, they shouldn't have this type of regulation simply by incorporating. And that, to me, is missing a huge legal issue that incorporating is a legal privilege, that even though they are granted personhood, they're also granted restrictive legal liability. And the history of corporations is that they were only permitted to pursue some purpose that served society.

  • 10:48:12

    KRISTYOriginally, you had to go the monarch and then the legislature. And we've lost sight that corporations have duties back to society. And simply by incorporating means that you are asking the government to protect your specific legal rights as a privilege.

  • 10:48:28

    REHMAll right. Joan?

  • 10:48:30

    BISKUPICWell, she's right, that the corporation is a form that creates legal rights and obligations. But here in this case, the test was, can a corporation also embody the idea of person that's in the Religious Freedom Restoration Act. And what Justice Alito said was, yes, indeed. He said a corporation is simply a form of an organization used by human beings to achieve desired ends.

  • 10:48:56

    BISKUPICAnd one thing I do want to mention to the caller is, as we were going into this debate, I thought that the real fallout would be about corporations because we had had Citizens United back in 2010, where the Supreme Court had reinforced the rights of corporations in the campaign finance venue. And we knew the gay rights issue was going to be part of the fallout for Hobby Lobby, but I think we also thought that, you know, the corporate form would, you know, would this energize people in terms of corporate rights versus individual rights. And that's really taken a backseat to what we're discussing here.

  • 10:49:31

    REHMAll right.

  • 10:49:31

    BISKUPICYou know, it's much more of a real question of how this plays out for average people in their lives.

  • 10:49:38

    REHMAll right. To Kalamazoo, Mich. Hi, Jean. You're on the air.

  • 10:49:43

    JEANHi. Thank you. A lot of what's been said I agree with. Also, I don't remember the Bible saying anything about birth control. Also, say Jewish people own a corporation, but they're not going to give insurance to people who believe that Jesus was the son of God. I mean, I've had little respect for the current Supreme Court. Nevertheless, I was really surprised at that ruling because, as many of your panelists have said, that's a slippery slope.

  • 10:50:25

    REHMSarah?

  • 10:50:26

    WARBELOWYou know, we really are talking about balancing interests. And one of the things I think we have lost sight of is this idea that we live in a pluralistic religious society. There isn't one religion. People are coming from many walks of faith, and particularly when it comes to LGBT people there's this idea that we are non-religious. And that simply isn't true. Many LGBT people are people of deep faith and who these issues are incredibly important to.

  • 10:50:55

    WARBELOWAnd we also increasingly are seeing people of faith arguing on behalf of the LGBT community. So the letter was mentioned earlier that was sent to President Obama, in which ministers and other individuals of faith were saying, look, we want to have really strict exemptions that provide huge carve-outs for religious corporations and prop up simply even for-profit companies as well. But…

  • 10:51:25

    REHMOn the other hand, here is an email from Jordan, who says, "What do you, Sarah, view as the moral basis for forcing business owners to do anything against their conscience? Shouldn't a private individual be able to choose to interact with or not interact with anyone for any reason?"

  • 10:51:58

    WARBELOWIn our private lives, absolutely. You should be able to choose whomever you want to come to dinner with you, who you want to welcome into your home. But when you step out into the public sphere, and you are providing services to the public, you've entered into an agreement. And we have had laws in place since the 1960s that have said you cannot refuse to serve people, protected categories, including race and religion, just because you don't like someone.

  • 10:52:29

    REHMEdward?

  • 10:52:30

    WHELANWell, we're seeing a dramatic shift in recent years in the understanding of just what the line between public and private is. It used to be that the public side of the line consisted primarily of governmental action. And the private line consisted of what individuals do largely throughout their lives. Sarah's right to point out the landmark Civil Rights Act of 1964, which, because of our terrible legacy of slavery and segregation, was necessary to shatter the system that had been built up since then.

  • 10:53:06

    WHELANThat somehow has provided template that's been adopted in area after area, including there's a law in Michigan now saying you can't discriminate on the basis of weight. And so we have government bureaucrats -- I'm serious about this -- deciding how heavy you can be in order to be a stripper.

  • 10:53:24

    REHMAnd you're listening to "The Diane Rehm Show." Let's go to Sloane in Reston, Va. Hi, there. You're on the air. Sloane, are you there? I guess not. Let's try John in Jacksonville, Fla. Hi there.

  • 10:53:51

    JOHNGood morning, Diane.

  • 10:53:51

    REHMJohn, I'm sorry. I can barely hear you.

  • 10:53:55

    JOHNCan you hear me better now?

  • 10:53:58

    REHMA little better. Go ahead.

  • 10:54:01

    JOHNYes. My question was, how does a sexual preference…

  • 10:54:07

    REHMJohn, I'm so sorry, but the line is very, very poor. Perhaps if you call back on some other line, we might be able to get you through. Here's an email from Fred, who says, "Once you allow an employer to use religion to refuse to provide medical coverage of any kind to its employees, what is to prevent a Catholic employer from refusing to hire Lutherans? Or what is to prevent a state from barring Catholics from holding public office?" Edward?

  • 10:54:56

    WHELANWell, the first part of that question, that question could have been asked 10 or 20 years ago as much as now. Hobby Lobby changes nothing about that. What you have, as I said, is a standard set forth under the Religious Freedom Restoration Act. Under that standard, I'm quite sure that a claim by a Catholic businessman running a business to discriminate against Lutherans in hiring would fail. So the notion that we have some new parade of horribles that Hobby Lobby has inaugurated I think is not right.

  • 10:55:30

    REHMJoan?

  • 10:55:30

    BISKUPICYes, the question in the case was who's actually protected. It was clear that religious organizations, individuals were clearly protected by this law. The issue was should a for-profit company be protected.

  • 10:55:43

    REHMRight.

  • 10:55:43

    BISKUPICAnd can a for-profit company assert some sort of individual right to religious exercise and the Supreme Court said, yes, indeed.

  • 10:55:51

    REHMAnd Sarah?

  • 10:55:53

    WARBELOWLet's be clear that actually under the Civil Rights Act of 1964 if you are a religious organization you can discriminate on the basis of religion. Now, you can't pick and choose. You can't say, I'll hire -- I'm a Catholic organization, I'll hire Methodists, but not Baptists. However, if you want to say, I'm a Catholic organization, I'm only going to hire Catholics, you do have the right to do that. We do protect religious liberties in our existing law.

  • 10:56:19

    REHMSo that line between religious liberty and civil rights gets somehow blurred.

  • 10:56:27

    BISKUPICYes, it always -- well, in the specific way that we were talking about in terms of businesses and employers and for-profit corporations, yes.

  • 10:56:35

    REHMAll right. Joan Biskupic, Edward Whalen, Sarah Warbelow, thank you all so much.

  • 10:56:42

    WARBELOWThank you.

  • 10:56:42

    WHELANThank you.

  • 10:56:43

    BISKUPICThank you.

  • 10:56:43

    REHMAnd thanks for listening. We'll await an executive order from the White House. Thanks for listening, all. I'm Diane Rehm.

  • 10:57:01

    ANNOUNCER...Sandra Pinkard, Denise Couture, Susan Casey, Rebecca Kaufman, Lisa Dunn, Danielle Knight, and Alison Brody. The engineer is Timothy Olmstead. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts and podcasts. Call 202-885-1200 for more information. Our email address is drshow@wamu.org, and we're on Facebook and Twitter. This program comes to you from American University in Washington, D.C. This is NPR.

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