The Supreme Court in Washington DC. Photo: Getty
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The Hobby Lobby decision was a victory for women’s rights

The Supreme Court has found a solution that is good for women and good for religious liberty.

Monday’s Supreme Court decision in Burwell v. Hobby Lobby could have been a disaster for women’s health and equality and, in the long run, for religious freedom. The Court cleverly devised a solution that avoided that disaster and decently accommodates the interests that had collided. The decision was a small victory for women’s equality – a core issue that many lower courts casually ignored.

The Affordable Care Act requires many employers to provide comprehensive insurance coverage, including contraception. Contraception can be expensive: an intrauterine device (IUD), one of the most reliable methods, can cost over $1,000. Hobby Lobby, a chain of craft stores, and several other companies objected to this requirement. The owners tried to run their businesses on religious principles, and they regarded some contraception as a form of abortion.

The federal Religious Freedom Restoration Act of 1993 (RFRA) prohibits the government from burdening a person’s exercise of religion unless that burden is the least restrictive means of furthering a compelling government interest. Hobby Lobby claimed, and many lower federal courts agreed, that the government’s interest in guaranteeing cost-free access to contraceptives was not compelling, because there are plenty of exceptions to the mandate. Obamacare exempts employers with fewer than 50 employees, which leaves 20 to 40 million employees uncovered. It does not apply to grandfathered plans, which cover millions more. An interest with so many exceptions, they reasoned, could not be a compelling one. Some of those courts also said that religious liberty could not be outweighed by a vague, generalized interest in “the promotion of public health”. One court was clueless enough to conceptualise the problem as one of determining the harm to the government if the exemption is granted.

The reasoning here is strained. The exemptions in question are mostly temporary. It is hard for a plan to keep its grandfathered status. More importantly, it shouldn’t be hard to decide whether the interests in question are compelling. When contraception is expensive, fewer women use it. Unintended pregnancies are awful for the women involved. They’re also bad for the children: women who don’t know they are pregnant are more likely to drink or smoke and less likely to get prenatal care. The contraception mandate improves the health of pregnant women and newborns, reduces the disparity in health costs between men and women, and, most importantly, allows women to determine the course of their own lives. Involuntary impregnation is one of the nastiest things that one human being can do to another. If promoting women’s health, bodily integrity, liberty and equality is not a compelling state interest, then what would be?

Some courts also concluded that, if Congress really wanted to provide contraception, it could pay for it itself. So they deemed the law to flunk the least-restrictive-means requirement. This rested on pure fantasy. Everyone knows that the Republican Congress will never vote such a subsidy.

In those now superseded decisions, the upshot was that women who worked for those employers – a lot of women; Hobby Lobby has over 13,000 full time employees – got no contraception coverage.

That made Hobby Lobby and other religious employers happy. But in the long run it would have been a disaster for religious liberty. That idea has always rested on the claim that one person’s religion doesn’t hurt anyone else. In Thomas Jefferson’s classic formulation: “[I]t does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

Had Hobby Lobby won on the grounds it claimed, however, religious liberty would suddenly mean the right to impose your religion on other people who don’t share your views. Such a pronouncement by the Court would certainly have strengthened the already growing secularist movement to eliminate any special legal protection for religious freedom.

Instead, the Court assumed, without deciding, that the government’s interest was compelling. Doubtless some members of the five-judge majority disagreed with that, but Justice Anthony Kennedy’s separate concurrence signaled pretty clearly that he thought so, and Justice Ruth Ginsburg’s dissent, for four justices, was even clearer. That’s a majority of the Court. So what could have been a disaster for women’s equality suddenly became a victory.

Having found a compelling interest, the Court moved on to least-restrictive burden. Here it ignored the bogus subsidy option, and noted instead that the Obama administration had crafted a clever solution for religious nonprofits. Those companies’ insurers were required to provide contraception in separate policies, for free – something the insurers were happy to do, because even expensive contraception is cheaper than childbirth.

The Court’s decision essentially required that the same accommodation be extended to religious for-profit employers. That will create some administrative headaches, which is why the administration resisted. But the alternative was imposing a heavy burden on the owners of Hobby Lobby, who clearly take their religious scruples very seriously.

Most importantly, as Justice Samuel Alito noted in his majority opinion, the burden on the women involved “would be precisely zero”. They will get the same free contraception that the challenged rule would have provided. In short: good for women, good for religious liberty. It’s a clever resolution that none of the parties had asked for, but that is better than anything on the menu that the Court had before it.

Andrew Koppelman is the author of The Tough Luck Constitution and the Assault on Health Care Reform and Defending American Religious Neutrality.

This article first appeared on


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"We repealed, then forgot": the long shadow of Section 28 homophobia

Why are deeply conservative views about the "promotion" of homosexuality still being reiterated to Scottish school pupils? 

Grim stories of LGBTI children being bullied in school are all too common. But one which emerged over the weekend garnered particular attention - because of the echoes of the infamous Section 28, nearly two decades after it was scrapped.

A 16-year-old pupil of a West Lothian school, who does not wish to be named, told Pink News that staff asked him to remove his small rainbow pride badge because, though they had "no problem" with his sexuality, it was not appropriate to "promote it" in school. It's a blast from the past - the rules against "promoting" homosexuality were repealed in 2000 in Scotland, but the long legacy of Section 28 seems hard to shake off. 

The local authority responsible said in a statement that non-school related badges are not permitted on uniforms, and says it is "committed to equal rights for LGBT people". 

The small badge depicted a rainbow-striped heart, which the pupil said he had brought back from the Edinburgh Pride march the previous weekend. He reportedly "no longer feels comfortable going to school", and said homophobia from staff members felt "much more scar[y] than when I encountered the same from other pupils". 

At a time when four Scottish party leaders are gay, and the new Westminster parliament included a record number of LGBTQ MPs, the political world is making progress in promoting equality. But education, it seems, has not kept up. According to research from LGBT rights campaigners Stonewall, 40 per cent of LGBT pupils across the UK reported being taught nothing about LGBT issues at school. Among trans students, 44 per cent said school staff didn’t know what "trans" even means.

The need for teacher training and curriculum reform is at the top of campaigners' agendas. "We're disappointed but not surprised by this example," says Jordan Daly, the co-founder of Time for Inclusive Education [TIE]. His grassroots campaign focuses on making politicians and wider society aware of the reality LGBTI school students in Scotland face. "We're in schools on a monthly basis, so we know this is by no means an isolated incident." 

Studies have repeatedly shown a startling level of self-harm and mental illness reported by LGBTI school students. Trans students are particularly at risk. In 2015, Daly and colleagues began a tour of schools. Shocking stories included one in which a teacher singled out a trans pupils for ridicule in front of the class. More commonly, though, staff told them the same story: we just don't know what we're allowed to say about gay relationships. 

This is the point, according to Daly - retraining, or rather the lack of it. For some of those teachers trained during the 1980s and 1990s, when Section 28 prevented local authorities from "promoting homosexuality", confusion still reigns about what they can and cannot teach - or even mention in front of their pupils. 

The infamous clause was specific in its homophobia: the "acceptability of homosexuality as a pretended family relationship" could not be mentioned in schools. But it's been 17 years since the clause was repealed in Scotland - indeed, it was one of the very first acts of the new Scottish Parliament (the rest of the UK followed suit three years later). Why are we still hearing this archaic language? 

"We repealed, we clapped and cheered, and then we just forgot," Daly says. After the bitter campaign in Scotland, in which an alliance of churches led by millionaire businessman Brian Souter poured money into "Keeping the Clause", the government was pleased with its victory, which seemed to establish Holyrood as a progressive political space early on in the life of the parliament. But without updating the curriculum or retraining teaching staff, Daly argues, it left a "massive vacuum" of uncertainty. 

The Stonewall research suggests a similar confusion is likely across the UK. Daly doesn't believe the situation in Scotland is notably worse than in England, and disputes the oft-cited allegation that the issue is somehow worse in Scotland's denominational schools. Homophobia may be "wrapped up in the language of religious belief" in certain schools, he says, but it's "just as much of a problem elsewhere. The TIE campaign doesn't have different strategies for different schools." 

After initial disappointments - their thousands-strong petition to change the curriculum was thrown out by parliament in 2016 - the campaign has won the support of leaders such as Nicola Sturgeon and Kezia Dugdale, and recently, the backing of a majority of MSPs. The Scottish government has set up a working group, and promised a national strategy. 

But for Daly, who himself struggled at a young age with his sexuality and society's failure to accept it, the matter remains an urgent one.  At just 21, he can reel off countless painful stories of young LGBTI students - some of which end in tragedy. One of the saddest elements of the story from St Kentigern's is that the pupil claimed his school was the safest place he had to express his identity, because he was not out at home. Perhaps for a gay pupil in ten years time, that will be a guarantee. 

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