Why Hobby Lobby could open a Pandora’s box of legal discrimination

Some effects of the Supreme Court’s decision on Monday in Burwell v. Hobby Lobby Stores will be relatively immediate: Women who work at companies with owners who decide it’s against their religious beliefs to provide birth control will lose free or cheap access to contraceptives such as the Plan B pill, IUDs and, potentially, condoms, as well as the most popular pill form of birth control.

But other consequences of the Hobby Lobby decision could take years to pan out, and they would affect not only contraceptives but also various women's rights as well as LGBT rights and the rights of the disabled.

Despite the assurance by Justice Samuel Alito in his majority opinion on Hobby Lobby that the implications of the case are narrow — solely focused on “closely held” companies and likely to affect only birth control — legal scholars say the ruling could open a Pandora’s box of court cases in which discrimination is justified under the rubric of religious freedom.

“I don’t think his assurances say this case won’t be applied to anything else,” said Kevin Russell, a partner at Goldstein & Russell, a law firm that represents cases before the Supreme Court. “It is going to arise again when someone sues over gender or sexual orientation discrimination.”

Russell says it may take a few years, but it’s not hard to imagine a case in which an employer decides to treat a woman differently than a man, or doesn’t provide equal health coverage to a same-sex couple, and justifies the decision by citing his or her religious beliefs. A case like that could easily wend its way up to the Supreme Court, according to Russell and other legal experts.

It’s hard to predict exactly what kind of cases Hobby Lobby will bring about, but there’s wide agreement that Monday’s decision was just the beginning of the story.

For one thing, Alito and the four other court conservatives for the first time argued that the Religious Freedom Restoration Act, which says the government can’t substantially burden a person's right to exercise his religion, can be applied to companies in the same way it is applied to people and nonprofits.

Companies can therefore legally be allowed to apply their owners’ religious beliefs to their employees. Alito insisted only smaller, privately held corporations would be affected by this ruling, pointing out that a public company has not yet used the RFRA in a court case. But Alito didn’t specifically bar one from doing so in the future.

Alito also insisted that the RFRA would likely be applied only to cases similar to Hobby Lobby, in which birth control is the main factor in religious objection. But some point out that his decision doesn’t explicitly prevent the RFRA from being used for other forms of opting out.

“He said that this case can’t be used for race discrimination, but there’s a whole lot that he didn’t say,” said Ian Millhiser, a constitutional policy analyst at the Center for American Progress. “What about gender? What about sexual orientation? As an objective matter, this is a very broad opinion.”

Legal experts also say Alito’s reassurances about the narrowness of Hobby Lobby don’t really matter. Previous Supreme Court cases that have cited narrowness have proved ineffective at preventing other courts from broadly interpreting the decision.

Take the recent history of another hot-button cultural issue — gay marriage. The spread of legal acceptance of same-sex marriage in the U.S. is based on the continued reinterpretation of similarly narrow legal rulings.

When the Supreme Court ruled in Lawrence v. Texas that the state’s anti-sodomy law was unconstitutional, the justices took pains to say that their decision wasn’t an implicit endorsement of same-sex marriage. Just months later, the Massachusetts Supreme Court struck down that state's same-sex marriage ban, citing in part Lawrence v. Texas. And last year, the case was mentioned no fewer than eight times by the Supreme Court in its majority opinion striking down key parts of the Defense of Marriage Act (DOMA).

Then, in its DOMA ruling, the Supreme Court said that DOMA wouldn’t specifically apply to states’ bans on gay marriage. But in the past year, several federal and state judges have used that decision to strike down statewide bans.

Legal experts say the Hobby Lobby decision could have a similar legal domino effect.

“In Lawrence v. Texas the justices said it can’t be used for same-sex marriage, and then the Supreme Court used it against DOMA,” said Mark Kende, a professor of constitutional law at Drake University. “So who knows what courts are going to do with this case? That’s the slippery slope.”