Jul 30, 201411:01 AMForward HR
with Diane Hamilton and Nilesh Patel
Will more federal laws be tested in wake of Hobby Lobby decision?
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Justice Ginsburg points out that the potential harm from the court’s decision extends beyond women and contraceptives. There are other religious objections businesses can raise. In previous cases, a restaurant refused to serve African Americans because of a religious objection to racial integration, a health club religiously objected to hiring someone who was homosexual or living with a person of the opposite sex, and a photography studio refused to photograph a lesbian couple’s ceremony. The court’s decision opens up the litigation gates for such objections to be raised again under RFRA.
RFRA’s stature as a super-statute, able to trump other existing and future federal laws and regulations, means there will be many opportunities for religious employers to object and to test the limits of RFRA’s reach. For instance, it is possible an employer may raise a religious objection to a single or a married but homosexual employee taking Family Medical Leave to adopt a child. An employer could object if an employee needs time off or needs medical coverage for an abortion that is medically necessary. The court’s precedent opens the door to such scenarios and to the litigation needed to resolve them. During litigation, employers may also be able to use RFRA as an affirmative defense to defeat employees’ discrimination claims.
Now it will now be up to Congress to rein in RFRA’s reach or to let the Supreme Court’s decision stand. Legislators are already considering a legislative fix. However, I believe it is a limited one. A proposed bill, which has already been blocked, talks about restoring women’s rights to contraceptive care. Even if that bill becomes law, it does not fully negate the precedent set by the case, because the bill does not contradict the ruling that for-profit corporations can practice religion.
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