The Right To Discriminate

As LA Times business columnist Michael Hiltzik reminds us, this week the most dire predictions of Justice Ginsburg's blistering dissent in the 2014 Hobby Lobby decision have come to pass as a federal judge has used the decision to rule that a funeral home has the right to discriminate against a transgender employee based solely on "sincerely held religious beliefs."

"The court, I fear, has ventured into a minefield.”

That’s how Supreme Court Justice Ruth Bader Ginsburg concluded her dissent to the 2014 Hobby Lobby decision. That’s the case in which the court ruled that businesses have a right to their own religious beliefs, and could use them to flout otherwise generally applicable federal laws — in this particular, the Affordable Care Act’s mandate that businesses provide contraceptive coverage as part of their employees’ health insurance.

The minefield Ginsburg warned about has now detonated. On Thursday, U.S. District Judge Sean F. Cox of Detroit ruled that a local funeral home was well within its rights to fire a transgender employee because its owner had a religious belief that gender transition violated biblical teachings.

Cox’s ruling puts the lie to Justice Samuel Alito’s denial, in his majority opinion in Hobby Lobby, that the ruling would provide a shield for a wide range of discriminatory practices by allowing them to masquerade as religious scruples. “Our decision today provides no such shield,” Alito wrote.

Ginsburg, who was on the short end of a 5-4 decision, knew better. She said there could be “little doubt” that religious claims would proliferate, because the court’s expansion of religious freedom to corporations “invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.” She asked, “where is the stopping point?… Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage … or according women equal pay for substantially similar work?”

She further cited court precedents holding that “accommodations to religious beliefs or observances … must not significantly impinge on the interests of third parties.”

As it happens, the case before Cox involves all those points. At issue was the firing of Aimee Stephens by R.G. & G.R. Harris Funeral Homes, which she had joined as a funeral director and embalmer under the name Anthony Stephens in 2007. In July 2013, she informed her employer that she would transition to her female identity starting in 2013, living and working as a woman for a year before undergoing sex-reassignment surgery. Within two weeks, she was fired. A year later, the federal Equal Employment Opportunity Commission sued the funeral homes on her behalf.

And this decision is just the tip of the iceberg.  I'm hoping the EEOC appeals the decision all the way up the the Supreme Court, but that won't be a very fun time if Donald Trump gets to name a ninth justice, will it?