AMERICAN JUDGES HAVE long recognized that religion alone doesn’t provide a blank check to break the law. The First Amendment protects religious belief, but like all rights it has limits: You can’t claim a religious justification for counterfeiting or fraud or bigamy and get out of jail free.
But that common-sense standard is starting to erode, in pieces so small that each one may seem inconsequential. The latest was a judge’s ruling in Detroit that a funeral home may discriminate against a transgender employee — something that would otherwise potentially be illegal — by claiming a Christian religious justification.
Chipping away at the antidiscrimination law proves that the warning issued by Justice Ruth Bader Ginsburg in 2014 was prescient: In endorsing religious exemptions, the courts are starting the slide down a slippery slope, one that could endanger the equal enforcement of all manner of laws. The number of transgender undertakers may be small. But, as Ginsburg wrote back then, “Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage . . . or according women equal pay for substantially similar work?”
The most recent decision stems directly from the infamous Hobby Lobby case, a 5-4 ruling in 2014 that allowed an employer to evade a requirement that employee health insurance include contraception. That, in turn, followed an ill-advised religious freedom law passed by Congress and signed by President Bill Clinton in 1993.
Defenders of the Hobby Lobby ruling insist there is no slippery slope, and that warnings like Ginsburg’s are alarmist. Under the 1993 law and the Hobby Lobby ruling, they argue, the government merely has to prove that it couldn’t meet the goals of legislation in some other way that posed less of a burden on religious
A problem is that there may be too much room for interpretation in applying the “least restrictive” standard. The judge in Michigan, for instance, faulted the government for, among other things, failing to address the specifics of the case, in which the funeral home fired a transgender female employee for failing to wear male clothing. Would it really be practical for the government to prepare a legal brief explaining why it should be allowed to enforce the law in every individual case?
The conservative Supreme Court, under Chief Justice John Roberts, has employed a clever strategy, issuing decisions that seem narrow yet contain the seeds of future mischief. The majority in Hobby Lobby, for instance, seemed to indicate that employment law protections would be unaffacted, with some soothing language from Justice Anthony Kennedy about its purportedly narrow scope.
But the decision did not actually say explicitly that its logic couldn’t be turned against employment protections. That was a lacuna that the judge in Detroit, Sean F. Cox, seized on: If the court specifically wanted to protect employment law from religious challenges, he wrote, “the majority presumably would have said so. It did not.”
The decision may be overturned on appeal. But Ginsburg was right about Hobby Lobby: It practically invited “for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.” That’s not a path to religious freedom; it’s a recipe for legal gridlock.