by Caroline Mala Corbin, Professor of Law, University of Miami School of Law
The United States has made tremendous progress on LGBTQ rights. We are, after all, celebrating the one-year anniversary of Obergefell v. Hodges and marriage equality. White House executive orders and EEOC guidelines have also expanded anti-discrimination protections. At the same time, there is still much that needs to be done. Congress has not amended civil rights law to bar LGBTQ discrimination in employment, education, housing, or public accommodations. Even when such protection exists, individual, organizations and businesses have claimed they have a religious right to discriminate against the LGBTQ community. In particular, the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc. expanded the Religious Freedom Restoration Act (RFRA), raising concerns about RFRA’s use as a means to discriminate in the name of religious freedom.
Hobby Lobby was a challenge to the Affordable Care Act requirement that large employers include FDA-approved contraception in their health care plans. Hobby Lobby Stores, Inc., a billion-dollar chain of arts and crafts stores with thousands of employees, argued that it was religiously opposed to certain forms of contraception and that consequently this contraception benefit violated its RFRA rights. Under RFRA, “persons” are entitled to exemptions from federal laws that impose a substantial burden on their religious conscience unless the challenged law passes strict scrutiny. A law passes strict scrutiny if it advances a compelling state goal in a narrowly tailored way. While RFRA itself applies to federal law, many states have counterparts that apply to state law.