This is What Happens When Bad Legal Precedents Are Set

On August 18, U.S. Court District Judge Sean Cox, in Michigan.

Ruled that a business can fire a person based on gender if the firing is religiously motivated.

In the Hobby Lobby case, the issue at hand was birth control. The owner of Hobby Lobby did not want Burwell and other employees to have access to birth control through their employee health insurance. The defendant, Hobby Lobby argued that a 1993 law, the Religious Freedom and Restoration Act (RFRA) exempted them from provisions of the Affordable Care Act (ACA) which mandated that insurance cover birth control and provided for exceptions only for religious organizations and non-profits. The Supreme Court ruled in favor of Hobby Lobby with Justices Sotomayor and Ginsburg dissenting in full and Justices Breyer and Kagan dissenting to most of the decision. In her Dissent, Justice Ginsburg noted that the decision would allow businesses to “opt out” of laws, which is exactly what’s happened in the new Harris case.

Thomas Rost is the owner of the Harris funeral home, which had employed Aimee Stephens since 2007. Stephens was a funeral director and embalmer and had previously gone by the name Anthony Stephens. In 2013 she notified Rost that she was going to begin the process of transitioning her outward appearance to match her female gender identity in anticipation of gender reassignment surgery. R.G. and G.R. Harris Funeral Homes have gender specific uniforms and Stephens intended to begin wearing the female uniform, Rost decided that was in conflict with one of his religious beliefs, so he fired her. In 2014 the Equal Employment Opportunity Commission (EEOC) filed the lawsuit against the company on Stephens’ behalf. Last Thursday, Judge Cox ruled in favor of the defendant that the firing was justified because of the RFRA precedent set by the Hobby Lobby case. However, there are a number of legal and other problems with both this new case and the Hobby Lobby case itself, so there is a good chance that this isn’t over yet.

One big issue with the Hobby Lobby case itself doesn’t even apply directly to the Harris case, but is still worth noting. It only makes sense for an employer to object to paying for certain forms of health care on religious grounds if we accept that the employer is the one paying for the health care. Because of the strange way health insurance is set up in the U.S., many people get health insurance through their employer, but it is still a form of compensation, like money or vacation days, that the employee earns. Employers are not allowed to intervene with how employees use their other forms of compensation, so it’s unclear why it’s acceptable for an employer like Hobby Lobby or others to be involved with decisions about how an employee uses their health insurance. This problem wasn’t created by Hobby Lobby or the courts and isn’t even technically a legal issue, but it does illustrate one reason why a health insurance system that is not tied to a person’s employer has some advantages.

A legal question that the Hobby Lobby case has created that applies to the Harris case, as well, is: how is it possible for a business to have a religious belief? In the case of Hobby Lobby, there was a stipulation that the business be closely-held, meaning it is privately owned by one person or only a few people. So it seems that if the owner or owners have a religious belief, then the business has a religious belief, but this falls apart under even minor scrutiny. What if the business is sold? Will it continue with its original religious beliefs or will it adopt the new owner’s beliefs? And if the beliefs of the business are always those of the owner, then how can it be said that the business itself has beliefs? And of course there is the question of why or how an abstract entity like a business could have beliefs.

Even if it were possible for a business to have religious beliefs, these cases don’t clarify how the law is supposed to determine what those beliefs are and when an action that is otherwise illegal becomes legal because of those beliefs. In the Harris case, if Rost was an atheist and had simply said he fired Stephens because he doesn’t like transgender people or doesn’t like women, this case would probably have gone a lot differently. There is no way for the court to determine if Rost’s, or the business’s, religious beliefs are genuine or if they’re being claimed in order to justify prejudice. If the beliefs are genuine, it’s still not clear how they justify an otherwise illegal action. Rost claims the firing was a result of his Christianity, but there is no explanation of where in Christian literature or teaching a condemnation of transgender people is stipulated. And if a belief against transgender people is taught by a religion, it still doesn’t necessarily follow that action against transgender people is mandated. No one has shown that being Christian mandates firing a transgender person. If an action isn’t even called for by a religion, then how can the legality of that action be solely based on religion?

In cases where religion does mandate certain actions, we don’t automatically declare them legal. For instance, the bible advocates stoning people to death for various reasons, but that’s not legal in the U.S., so where do we draw the line on what is and isn’t allowed because of religious beliefs?

Unfortunately, until Harris is overturned, we are stuck with the legal precedent it sets and even if/when Harris is reversed, it still won’t fully fix the bad precedent set by Hobby Lobby. At some point, maybe there will be a case of a business owned by devoutly pacifist Quakers or Buddhists that fires an employee for joining the National Guard or, perhaps, a case will come up where a Hindu business refuses to allow an employee to use their health insurance to pay for a heart valve transplant with cow tissue. With cases like these, maybe it would be easier for more people, including many who are part of our legal system, to understand the logical, moral, and legal pitfalls of using religion as a reason to permit behavior that would otherwise be illegal.

Alexis Chapman is a Political Consultant and Writer specializing in all types of policy analysis, from international law to local ordinances. She’s lived in Australia, Ghana, Vermont, Hawaii, and Texas and has worked for small and large NGOs, state legislature, industry associations, and a variety of publications. She is a regular contributor to Political Storm.

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