The Fourth Demand

Abstract

Copyright © 2016 Michigan State University. Alyssa A. Samek, “The Fourth Demand,” QED: A Journal in GLBTQ Worldmaking 3.1 (2016): 148–156. ISSN 2327-1574. All rights reserved. In her dissent in the Burwell v. Hobby Lobby case, U.S. Supreme Court Justice Ruth Bader Ginsberg wrote, “The Court’s determination that [the Religious Freedom Restoration Act] RFRA extends to forprofit corporations is bound to have untoward effects. . . . The Court, I fear, has ventured into a minefield.”1 Efforts to craft exemptions for religious businesses and organizations to avoid compliance with laws ranging from the Affordable Care Act to employment discrimination have ramped up, increasing concerns about the potential efficacy of antidiscrimination legislation. One of the best examples of this concern is the Employment NonDiscrimination Act (ENDA) legislation, designed to prohibit discrimination in the workplace on the basis of sexual orientation or gender identity. The most recent version of ENDA contained an organizational religious exemption, and in an historic move in the long and winding life of the legislation, major advocacy groups including the American Civil Liberties Union, Gay & Lesbian Advocates and Defenders, the National Center for Lesbian Rights, Lambda Legal, and Transgender Law Center withdrew their support. In a joint letter, they called the provision for religious organizations “discriminatory,” and “unprecedented in federal laws prohibiting employment discrimination,” which “could provide religiously affiliated organizations— including hospitals, nursing homes and universities— a blank check to engage in workplace discrimination against LGBT people.”2 Rea Carey, the executive director of the National LGBTQ Task Force, added that once a company can claim “biblical principles” to ban certain forms of birth control, as in the Hobby Lobby case, “it’s a hop, skip and a jump to an interpretation that a private company could have religious beliefs that LGBT people are not equal or somehow go against their beliefs and therefore fire them.”3