Will Obergefell Be the New Roe?

Religious exemptions have already chipped away at the right to choose. LGBT equality could be next.

Charlie Craig and Dave Mullins hold hands outside the U.S. Supreme Court as Masterpiece Cakeshop vs. Colorado Civil Rights Commission is heard on Dec. 5 in Washington.
Charlie Craig and Dave Mullins hold hands outside the U.S. Supreme Court as Masterpiece Cakeshop vs. Colorado Civil Rights Commission is heard on Dec. 5 in Washington.
Brendan Smialowski/AFP/Getty Images

The Supreme Court’s decision in Masterpiece Cakeshop on Monday did little to put to rest the debate over religious exemptions from laws against discrimination. It let a Colorado bakery’s discrimination against a same-sex couple seeking a wedding cake go unchecked, but only on facts specific to the case. The court didn’t embrace the radical argument advanced by the bakery, and supported by the United States Department of Justice, that the Constitution guarantees a right to discriminate in violation of state law. And it reaffirmed the long-standing rule that states can—and should—prevent the harms of discrimination in the marketplace.

Opponents of LGBT equality are already mischaracterizing the court’s decision as holding that religious freedom authorizes denials of service to LGBT people. This despite the court’s recognition that exemptions from anti-LGBT discrimination are inconsistent with the equal dignity for LGBT people the court embraced in its marriage equality decision. Indeed, anti–LGBT civil rights activists have vowed to make Obergefell v. Hodges, the Supreme Court’s 2015 decision that recognized same-sex couples have the freedom to marry, the new Roe v. Wade. For example, conservative writers Ryan T. Anderson and Sherif Gergis have said, “The law after Obergefell should treat those who believe that marriage unites man and woman … as it has treated prolife hospitals, doctors, and others in the wake of Roe v. Wade.” Alliance Defending Freedom—the very same legal organization that argues in courts across the country for ever-increasing religious exemptions in the reproductive rights space—asked the Supreme Court in Masterpiece Cakeshop to create an unprecedented religious exemption from a law barring discrimination against LGBT people. (Disclosure: I was part of the ACLU team representing the same-sex couple in Masterpiece Cakeshop.)

The decision in Masterpiece Cakeshop will not deter opponents of LGBT equality from pursing this strategy. They will continue to argue in the courts that the Constitution and statutes protecting religious liberty give them the right to discriminate. And they will argue for statutory exemptions, as a compromise necessary in state legislatures and Congress, for the progress on LGBT rights that we very much need.

LGBT people still don’t have formal legal equality, let alone lived equality. Today, federal civil rights laws and the laws of more than half the states still do not expressly bar discrimination based on sexual orientation or gender identity. But if the antidiscrimination laws we end up with have broad carve-outs for religious objections, those of us who are fighting for legal equality for LGBT people may be playing into our opponents’ hands. I know because I’ve spent the last 25 years defending Roe. I’m the canary in the coal mine: This is a tale of caution.

Far from leading to greater progress and harmony, religious exemptions in the reproductive rights field have fanned the flames of the conflict, eroded the right to abortion, and fostered stigma and shame. At the most basic level, the laws providing broad rights for religious refusals have fostered and legitimized calls for more.

The full promise of Roe v. Wade lasted less than a year. In 1973, the Supreme Court issued its decision recognizing the fundamental right to an abortion. But by the end of 1974, 27 states had laws allowing hospitals to refuse to provide abortions based on religious beliefs, and 28 allowed individual health care providers to refuse. By the end of 1978, nearly every state had such laws.

These exemptions did not quiet the objections of those who oppose abortion. We didn’t settle into a calm, with hospitals and doctors opposed to caring for patients who seek abortions refusing to provide the care and others offering abortion services without controversy. Rather, we’ve seen a never-ending call for ever-expanded rights to refuse to provide care with real consequences for the status of abortion—and those who seek and provide it.

Just look at what has happened in the last decade or so. Since 2005, federal law has offered protections for hospitals and individual health care providers that refuse to even provide referrals so patients can find the care they need elsewhere. The predictable result is that patients don’t always get the information, and the care, they need.

Rules recently proposed by President Trump would go further, permitting health care providers to refuse to provide any information or direction—not just a referral—that could assist a person in obtaining an abortion. In the words of the government, these rules are necessary to ensure broad protections for hospitals and others “unwilling to be complicit” in services “they cannot in good conscience themselves provide.”

Years ago, nurses at a public hospital in New Jersey objected on religious grounds to caring for a patient after an abortion. They sued to guarantee they would not have to ensure a patient had a ride home after getting an abortion, arrange a follow-up appointment, or even bring the patient to the lobby when her ride had arrived. That care, the argument went, was “part of the abortion process.” Their claim rendered the patient untouchable. (The case ultimately settled.)

Now the government is prepared to embrace that argument. Trump’s proposed rules stipulate that hospitals, doctors, nurses, and others can refuse to engage in any activity with “an articulable connection” to an abortion if they object based on religion. In the other words, the government wants to use its power to immunize medical professionals who see taint in providing any care to a patient who has obtained an abortion—care that is constitutionally protected.

And exemptions are no longer only about abortion. They’re about contraception, a right the Supreme Court recognized as fundamental nearly a decade before Roe. And not just about contraception but about insurance for contraception. We saw that in Burwell v. Hobby Lobby where several businesses, including the arts and crafts chain store, went all the way to the Supreme Court to object to providing insurance coverage for contraception, which they were newly required to do under the Affordable Care Act. Providing insurance, they said, would facilitate sin. Even an accommodation—one that said that closely held corporations and religiously affiliated entities wouldn’t have to provide insurance themselves, but would have to lodge their objections with their insurers or the government—gave rise to dozens of lawsuits. Why? Because the simple act of filing the objection might trigger someone else to provide insurance coverage for contraception to their employees. Now the federal government has issued an interim final rule that permits any employer with a religious objection to deny its employees insurance coverage for contraception. The religious objection overrides the advance of equality.

Those early exemptions around abortion didn’t just legitimize the idea of exemptions. They whetted the appetite for more, and more, and more. And now it seems as if there may be no way to satisfy that thirst short of overruling the core right to abortion itself.

The consequences here are many. Exemptions limit access to abortions. Hospitals close their doors on patients seeking abortions. Doctors, nurses, and other health care workers refuse to care for patients seeking abortions or maybe even patients who have had an abortion in the past. Patients struggle even to get the most basic information about their health care—including information that lets them know abortion is an option.

Exemptions thwart equality. As a plurality of the Supreme Court emphasized in a 1992 decision addressing a challenge to Roe: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” That participation is threatened when every advance, even one as long overdue and modest as insurance coverage for contraception, is punched through with holes because of religious exemptions.

Exemptions keep alive the debate over the very legitimacy and morality of abortion. As the Supreme Court said in the context of marriage equality, “when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” We are increasingly too tainted to walk through the door, too tainted to touch.

We live in a country where abortion, and the people who seek and provide it, are stigmatized, shamed, and even shunned. Religious exemptions have had something to do with that.

This is not what I want for the LGBT movement. Maybe the story will be different for LGBT rights. However, there is reason to not be so sure.

Just look at what’s happening in the public discussion about LGBT rights. Those objecting to same-sex couples marrying aren’t arguing only for exemptions related to a wedding ceremony: They claim a right to deny insurance coverage to a same-sex spouse, and to fire someone because they marry someone of the same sex, all based on religious objection. Health care providers claim a right to refuse to provide medically necessary care to patients who are transgender. A funeral home argues its religious beliefs justified its firing of a transgender employee. Mississippi has enshrined in state law protection for actions based on the religious beliefs that same-sex couples should not marry, that people should not have sex outside of marriage, and that transgender people don’t exist. Other states now allow adoption and foster care agencies that receive government funds to turn away prospective parents based on the agencies’ religious beliefs. At least one state expressly authorizes counselors to refuse to provide mental health services to LGBT people based on religious beliefs.

This is not a picture of limited exemptions being enacted with quiet to follow.

Opponents of LGBT equality have stolen another page from the anti-choice playbook: They are trying to argue that the exemptions aren’t about discrimination. In Masterpiece Cakeshop, for example, the bakery put its focus on the cake and the artistry in an attempt to divert our eyes from what was really at issue here: the bakery owner pointing a same-sex couple to the door because they wanted to celebrate their wedding. It’s akin to what’s transpired with abortion. Today, the refusal to treat those who want an abortion is seen as a refusal to provide a service. The connection to the project of equality is lost. That argument didn’t work in Masterpiece Cakeshop, but we will surely see it again. That’s a dangerous place to be.

Advocacy for religious exemptions keeps moral objections to LGBT people in the public discourse. The promise of equality is fragile if state legislatures grant businesses a right to, in essence, post signs in their shop windows saying “Wedding Cakes for Heterosexuals Only,” or “No Transgender People Need Apply.” That, after all, would be a consequence of a legislative exemption. Those sorts of messages, and even the discourse around them, shame us all. As Justice Anthony Kennedy said, such signs “would impose a serious stigma on gay people.”

Today, even more than last week, those of us working for LGBT equality should stand firm against any compromise involving exemptions. On Monday, seven justices embraced the notion that exemptions can result in “community-wide stigma inconsistent with the history of and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” Surely legislators can recognize that as well.

Pamela S. Karlan, a Stanford law professor and occasional Slate contributor, once said, “Gays have come out of the closet and women who’ve had abortions have gone into the closet.” Exemptions—which are nothing other than government-sanctioned discrimination—invite us all back in.