Portside

Arizona Gov. Jan Brewer (R) may have vetoed SB 1062, the legislation Arizona lawmakers passed in the hopes that it would enable business owners to discriminate against gay people, but the fight over whether business owners have a legal right to discriminate is far from over. To the contrary, the Supreme Court could give anti-gay businesses sweeping new authority to discriminate in a pair of cases being argued next month. And, unlike the Arizona bill, a Supreme Court decision cannot simply be vetoed to prevent it from working a great deal of mischief.

Although SB 1062 became a subject of infamy because of its likely impact on the LGBT community — one of the bill’s supporters in the Arizona legislature claimed that it would prevent people with anti-gay religious views from being “punished for their religious beliefs” — the legislation was actually much broader. Current Arizona law provides fairly strong protections for people whose religious beliefs are at odds with following the law. The primary change that would have gone into effect if the Arizona bill became law is that corporations, business partnerships, or any “other legal entity” would have gained the right to make religious liberty claims as well.

If this issue sounds familiar, it should, because it’s the exact same issue behind two of the most high profile Supreme Court cases being hear this term — Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius. In both of those cases, for-profit businesses object, on religious liberty grounds, to complying with Obama Administration rules increasing access to birth control. One of the most important questions presented by both cases is whether a for-profit corporation can have religious faith at all, and if so, whether it can use that supposed faith as the basis for a legal claim.

So if the Supreme Court agrees with the plaintiffs in these cases that corporations aren’t just people, but they can also be people of faith, the outcome will be very similar to what would happen if Congress had taken the bill Brewer just vetoed, passed it at the federal level and then President Obama had signed it into law — except, of course, for the fact that no one on the Supreme Court was actually elected to make law.

There is, however, an open question regarding how the Arizona bill would have been interpreted had it been signed into law that is even more important than the question of whether corporations are religious people. And this issue also looms large in the Hobby Lobby and Conestoga Wood cases.

Both federal and Arizona law provide that the government may not “substantially burden a person’s exercise of religion” unless it does so “in furtherance of a compelling governmental interest” and it uses the “least restrictive means of furthering that compelling governmental interest.” Lawyers will immediately recognize this legal rule as something known as “strict scrutiny,” an exacting test that very few laws survive. If this part of both federal and Arizona law is read in isolation — which is what the plaintiffs in Hobby Lobby and Conestoga Wood essentially urge the Court to do — then people with religious objections to the law would gain sweeping immunity from it. Business owners who want to discriminate against gay people would have a very, very strong legal case under Hobby Lobby and Conestoga Wood’s legal theory.

The problem with their legal theory, however, is that these words should not be read in isolation. Both the federal law and the bill which became Arizona’s current law incorporate several previous Supreme Court cases into their legal rule. Indeed, the federal law explicitly states that its purpose is to “restore the compelling interest test as set forth in Sherbert v. Verner [] and Wisconsin v. Yoder [].”

As several church-state legal scholars explain in an amicus brief filed in the Hobby Lobby and Conestoga Wood cases, both Sherbert and Yoder set out a far less exacting legal rule than the plaintiffs in Hobby Lobby and Conestoga Wood would prefer that they did. In Yoder, the Court held that an Amish family was exempt from a law making school attendance mandatory. Yet the Court also emphasized that it supported this exemption because it believed that granting it would not cause any harm to an innocent third party. “This case,” the Court explained, “is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.”

Likewise, in Sherbert the Court sided with a plaintiff who claimed a religious liberty right to not work on Saturday, which was considered the sabbath in her faith. Once again, the Court emphasized that it reached this holding because “the recognition of the appellant’s right to unemployment benefits under the state statute” did not “serve to abridge any other person’s religious liberties.”

Later cases applying the rule set forth in Sherbert and Yoder are even more explicit that one person’s legal rights cannot be used to disparage the rights of another. Most notably, in United States v. Lee, the Court held that religious liberty claims are particularly weak in the business context. “When followers of a particular sect enter into commercial activity as a matter of choice,” according to Lee, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

Denying birth control to your workers because of your own religious objections to it superimposes your own personal beliefs about conscience and faith onto your employees. So does refusing to serve a gay person due to a religious objection to their sexual orientation. If the Supreme Court winds up holding that one person’s faith can impose itself on another, which is exactly what the plaintiffs in Hobby Lobby and Conestoga Wood want them to do, then all the nightmare scenarios imagined in the debate over the Arizona bill could become very real — at least at the federal level. Indeed, it is even possible that business owners who object to serving African Americans on religious grounds could challenge a 1983 Supreme Court decision holding that religious beliefs cannot justify racist discrimination.

If the Supreme Court is willing to overrule Lee, and to embrace the almost oxymoronic notion that corporations can be people of faith, then there could be little end to business owners’ ability to immunize themselves from the law — so long as they cover their objections to those laws in a religious wrapper.