With the expected pass from the Republican led house, the senate is also predicted to follow in compliance - given that a filibuster movement is not seen from the Democrats. It may go without saying, but President Elect Donald Trump, has also adamantly vouched to sign this ‘religious freedom’ bill. The First Amendment Defense Act would blatantly enable the discrimination of the LGBT community, and women at large. These soon to be justified discriminatory practices will be cloaked and protected by claimed religious beliefs of not only individuals, but entire cooperations.
FADA would maintain that discrimination is not truly discrimination, if there is a backing religious reason. At it’s very fundamental core, it is catered towards maintaining the standard heterosexual image of marriage and love. To be utilized by any corporation, company, or person whom “believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”
The scariest implications about the predictably passed bill, is that they are far reaching and can therefore be easily manipulated. A corporation, company, or person ? What does this truly mean ? Where does the line get drawn ? The broad leeway that this bill would grant is devastating given the strides that the LGBT community has made within the last year.
FADA can be drawn akin to state “religious freedom restoration acts”. One of the most infamous cases surrounding the inter-relationship of private employers and religious beliefs, would be the 2014 U.S. Supreme court case, Burwell v Hobby Lobby Stores. Hobby Lobby wanted to show how the Religious Freedom Restoration Act (RFRA), justified them in refusing to have their employee health benefits be used towards contraceptive care, which they viewed as being equivalent to abortion. Does Hobby Lobby truly have standing with the RFRA ?, and does the government have a compelling interest to protect the personal religions belonging to members of Hobby Lobby by inadvertently denying women affordable access to reproductive health care?
This case landed in a 5-4 decision. The majority opinion pioneered by Justice Alito, maintained that if non profit organizations were covered by RFRA, then so could “closely held family corporations”. Therefore any “closely held family organization” (whatever that means), could claim status under RFRA.
Finally, the majority opinion concluded that even though the government may have a compelling interest in the reproductive health and care for women, it is not the only pathway to reproductive health and care for women. By this line of reasoning, they need not see the refusal for reproductive health coverage as an undue burden placed on employees. They stoically assume that other ways to get quality and affordable reproductive health care that don’t involve the violation of someone else’s (a corporation’s) religion, must exist.
I would love to see these various methods of acquiring affordable health care written out.
In the dissenting opinion, Ginsburg addresses the ridiculousness apparent in addressing a corporate as a person, and granting them rights equal to that of independently autonomous agents. Hobby Lobby is not a religious entity. For this reason, it is naive to assume that it would attract employees and customers of one specific faith. In addition, the exemption set in place for “closely held family organizations”, then opens the door for an added responsibility placed on legislatures to cover all possible religious accommodations that can arise in any work setting.
A failure to apply such an exemption to other groups, would be unjust given the established precedent. In addition, such mandates have a very real and disproportionate impact on poor women who depend on their work benefits to cover their medical expenses. Will women have to turn down job offers due to the corporation's refusal to give them adequate health benefits ? This is a cruel ultimatum to be in. Additionally, how could government regulate religion ? At what point do they draw the line and say that although something may be stated in one’s religion to do, it is not ethically permissible ? The precedent established in this case goes to show how far religion can bend government - women are literally being denied health care in the name of another's religious beliefs. The dissenting opinion shares my concern and worries if such mandates could function in a way that ends up discriminating classes of people. “... for example on the basis of race, might be cloaked as religious practice to escape legal sanction.The Government has a compelling interest in providing an equal opportunity to participate in the work- force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal”. The grey area that would ensue will be insurmountable and perhaps too vast for the courts to dictate when a corporation, company, or individual has overstepped their given (amended) constitutional rights.
Justice Ginsburg had it right three years ago - and the pending intrusion into our constitutional rights through FADA is a testament of her prediction. The unfortunate and inhumane precedent set by cases such as Hobby Lobby, are what has made such an amendment possible.
It is at times such as these that compel me to wonder if strict contextualists such as the late Justice Scalia, had the right idea of how it is best appropriate to interpret the law. Perhaps things were better when we were all still arguing over the intended meaning that our founding fathers had, as oppose to now, when those in favor of denying entire classes of people due rights, are holding the reigns of "democracy".
