Hobby Lobby Decision Could Open Colorado LGBT To Discrimination

August 6, 2014

hobby lobby decisionThe Supreme Court’s controversial decision in Burwell v. Hobby Lobby regarding an employer’s obligation to pay for health insurance that covers contraceptives for female employees could have far-reaching consequences in Colorado.

Some Colorado companies are already preparing to attempt to apply the Hobby Lobby decision to argue that they have the right to use discriminatory hiring practices or to refuse services to minorities, particularly the LGBT population, because of their religious convictions.

The Supreme Court’s Hobby Lobby decision

Hobby Lobby is a family-owned company and its principals took their case to the Supreme Court because their religious beliefs don’t support the use of female contraception. The company ultimately won and won’t have to pay for insurance to cover birth control under the Affordable Care Act.

The court didn’t take corporate first amendment rights into consideration. Instead, justices looked at the case through the lens of the Religious Freedom Restoration Act, which requires that generally applied laws that create a substantial burden on religious freedoms be more rigorously analyzed.

Five justices found in favor of Hobby Lobby and four dissented. Justices Alito, Scalia, Roberts, Thomas and Kennedy found that closely held corporations – which includes nearly 90% of all US corporations– have rights to the free exercise of religion, and that the Affordable Care Act requirement to pay for insurance that covers contraceptives was a substantial burden on those rights.

The dissenting justices, Ginsburg, Breyer, Kagan and Sotomayor, argued that the majority ruling is a slippery slope that will lead to more controversial cases that could erode civil rights advances.

Hobby Lobby decision opens a can of worms

Justice Ruth Bader Ginsberg wrote that the decision is not confined to closely held corporations or to the issue of birth control. It opens the door for countless cases involving companies seeking approval from the Federal Government to discriminate.

While Justice Alito argues in his counter that the Hobby Lobby decision provides “no such shield” to companies seeking to discriminate, he refers only to race in his reply. That has many Denver-area attorneys, judges and legal experts worried.

The fact that Alito left out discrimination based on gender, sexual orientation, gender identity and other factors, such as age, pregnancy and ethnicity, is probably no coincidence. He wanted to leave the door open for such discrimination cases, legal experts argue.

LGBT discrimination

President Barack Obama is preparing to issue an executive order that bans employment discrimination based on sexual orientation or gender identity among government contractors.

This ruling will counter the executive order and could give Colorado companies grounds to discriminate. Of course, would-be employees have every right to pursue a case if they have been discriminated against. The Hobby Lobby decision will not likely apply as broadly as feared, but we won’t know until a discrimination case progresses through the courts.

Contact a Denver attorney

If your employer isn’t providing the insurance required under the Affordable Care Act or if you have been discriminated against as an LGBT person, the skilled Denver attorneys at Farncombe, Schultz, and Farncombe will fight to protect your rights.

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