Using the Hobby Lobby precedent against same-sex marriage

Conservatives are losing their minds over last week’s double whammy they received from the US Supreme Court on Obamacare and same-sex marriage and are trying to find ways to defy the rulings. While there is little they can do about the Obamacare decision except vow to repeal it whenever they get the opportunity to do so after some future election success, they have more options with same-sex marriage.

The fact that same-sex marriages are legal means that they have to be granted the same rights as opposite–sex marriages and thus employers have to give them the same benefits such as health care. You can expect religious opponents to fight these requirements. Some issuers of marriage licenses have decided to not issue them to anyone in order to avoid doing so to same-sex couples. But this is not a feasible long-term strategy since it inconveniences opposite-sex couples as well.

What is more likely is that opponents are going to try and carve out an exemption that allows registrars of marriages to deny them only to same-sex couples using the same loophole as was granted for contraceptives in the Hobby Lobby case where they were successful in getting the US Supreme Court to create an exemption to the law that requires health insurance policies to provide women with certain contraceptive services. The ruling said that certain kinds of entities, even some for-profit private companies, can use the religious beliefs of its owners to deny those services to employees.

That exemption was provided by RFRA (the Religious Freedom Restoration Act) and it looks like same-sex marriage opponents are going to try and repeat it not only with registrars but with religious organizations and private companies owned by religious people. The Texas attorney general is already urging county clerks that they can do so on this basis.

Expect to see another round of court cases along these lines. This poses a tactical question. Do you immediately challenge such practices legally and risk the Supreme Court upholding it? Or do you wait and see how widespread this kind of denial is and see if the effort simplies dies of its own accord?


  1. says

    It may be worse that what you outlined: the precedent could allow corporate entities to outright discriminate on the grounds of orientation or presentation — or race, or gender, or religion, or anything else — on the grounds of “our religion says they are inherently sinful and we mustn’t associate with them,” regardless of national, state and local anti-discrimination laws. It would be a very small leap to go from “Our corporation’s religious beliefs say we do not have to recognize same-sex marriage” to “Our corporation’s religious beliefs say we do not have to hire homosexuals.”

    The fight is still very far from over.

  2. gshelley says

    They might struggle with this, as it could be seen as favouring one particular religious view.
    Some states might do the thing where government employees don’t perform the marriages, though there would still be objections to handing them out or processing them

  3. Matt G says

    It seems like the best conservatives can do is inconvenience same sex couples. Once a couple is married, they’re married. The question is, to what extent can they put up roadblocks.

  4. Mano Singham says

    Does anyone know how the Supreme Court opinion on same-sex marriage can be enforced against people who defy it? In the case of those who defied the school desegregation order back in 1957, president Eisenhower had to send in federal troops to get students past the state national guard troops that had been used by the governor of Arkansas to block them.

    The situation here is different in that people are not being physically blocked from entering a building. So how might state officials be forced to issue licenses by the federal government if they defy the verdict? Perhaps the Department of Justice’s Civil Rights division could sue them? I don’t know.

  5. moarscienceplz says

    re #4
    During the Civil War, Lincoln suspended Habeas Corpus and the Chief Justice ruled that he was out of line, but Lincoln just ignored the ruling. The SCOTUS does have to depend on the support of the Executive Branch.
    It may well be that some county clerks will have to be arrested and thrown in jail to ensure compliance, but today’s South is not the South of the civil rights era. I would imagine the Attorney General could find some Police Chief or Sheriff who would obey a direct command, thus avoiding the necessity of troops and that whole Posse Comitatus Act mess. If nothing else, the FBI could do the arresting.

  6. brucegee1962 says

    This seems like it could have a real silver lining politically. The longer this stays as a hot issue coming up to the elections, and the more the republican candidates are forced to go on the record about it, the better for Hillary.

  7. Kilian Hekhuis says

    “But this is not a feasible long-term strategy since it inconveniences opposite-sex couples as well.” -- You see? Gay marriage is *already* destroying straight marriage!

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