How Hobby Lobby Split the Left and Set Back Gay Rights

The Supreme Court decision set off a debate between religious liberty and sexual-orientation nondiscrimination that advocates fear could undo years of progress.

James Lawler Duggan/Reuters

In the Hobby Lobby decision handed down last month, the Supreme Court was asked to strike a balance between women’s rights and religious freedom. But the major conflict that has erupted in the wake of that decision has been between religious freedom and gay rights. The resulting controversy has split gay-rights and faith groups on the left, with wide-ranging political fallout that some now fear could hurt both causes.

One chapter of the controversy is set to close on Monday, when President Obama plans to sign a long-awaited executive order banning federal contractors from discriminating against gays and lesbians, according to a White House official. But the debate that began over that order’s provisions for religious nonprofits has spilled over into a broader conflict. Many prominent gay-rights groups have now withdrawn their support from a top legislative priority, the Employment Non-Discrimination Act, over the religious exemption it contains.

“The religious exemption debate has now been polarized to the point where people are saying, ‘All or nothing,’” said Lanae Erickson Hatalsky, director of social policy for the center-left think tank Third Way, whose research and activism on gay marriage have been instrumental to that cause’s mainstream acceptance. “The narrative that’s now beginning to form is that Democrats are against religion. It’s not true, and it’s very dangerous.”

The order Obama is to sign Monday seeks a middle ground. It maintains the narrow exemption already in federal law, which states that religious groups that contract with the government can make religion a condition of hiring. Some gay-rights and civil-liberties advocates had called on Obama to eliminate that provision. But the new order will not include a broader religious exemption that would allow nonprofit contractors to refuse employment to gays if they viewed it as inconsistent with their faith. Some progressive faith leaders had asked Obama to include such an exemption. "The president, and the American people, firmly believe that all Americans deserve to be treated with dignity and respect in the workforce," the White House official said Friday.

The debate over a religious exemptions for sexual-orientation nondiscrimination first came to the fore as ENDA, which would prohibit discrimination on the basis of sexual orientation in private workplaces, was being drafted. Conservative religious groups like the Conference of Catholic Bishops pledged not to oppose the legislation if it included a broad exemption covering all employees of religious nonprofits. (ENDA’s exemption doesn’t apply to for-profit companies like Hobby Lobby, but it would allow a Catholic school, for example, to fire a gay teacher or janitor.) Such an exemption made many gay-rights campaigners nervous, but most accepted it as a necessary political compromise to get the votes of moderate lawmakers.

The Catholic Bishops reneged on the deal, coming out in opposition to ENDA in 2010 despite the exemption. Nonetheless, the bill passed the Senate last November with 64 votes. Many of the Republicans who voted for the bill, such as Utah Senator Orrin Hatch, cited the exemption as the reason they could support it.

With the Republican-controlled House declining to bring ENDA up for a vote, gay groups called on Obama to take executive action by applying its provisions to federal contractors. (Federal employees are already protected from sexual-orientation discrimination.) Last month, the White House finally announced he would do so. Whether the order would include a religious exemption along the lines of ENDA’s immediately became the subject of debate. When the Hobby Lobby decision came down shortly afterward, the debate intensified.

To some faith leaders—including Rick Warren, the megachurch pastor who gave the invocation at Obama’s first inauguration; Michael Wear, who directed faith outreach for Obama's 2012 campaign and worked in the White House Office of Faith-Based and Neighborhood Partnerships; and Stephen Schneck, director of the Institute for Policy Research and Catholic Studies at Catholic University and a former cochair of Catholics for Obama—Hobby Lobby showed the importance of giving religious employers latitude to exercise their faith. They and several others wrote a letter to the White House calling for the nondiscrimination executive order to include a religious exemption. Jim Wallis, one of the most vocal leaders of the so-called “religious left,” also circulated a draft letter in favor of an exemption, but never ended up issuing it.

To many liberals, however, Hobby Lobby sent the opposite message: that religious exemptions were a potentially dangerous new wedge for cultural conservatives seeking to impose discriminatory policies. Gay-rights groups lobbied against including an exemption in the executive order. They were joined by a large group of Christian, Jewish, Muslim, and interfaith leaders, who wrote their own letter to the White House: “An executive order that allows for religious discrimination against LGBT people contradicts the order’s fundamental purpose, as well as the belief shared by more and more Americans every day, which is that LGBT people should not be treated as second-class citizens,” they wrote.

The letter also asked Obama to undo a 2002 order allowing discrimination on the basis of religion. That order had been issued by George W. Bush in order to allow more religious nonprofits to get federal funding for social services.

As the debate raged in the pages of publications like Christianity Today and The Advocate, supporters of the exemption pointed out that what they were seeking was only what ENDA would have allowed. On July 8, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center announced they would no longer support ENDA as long as it included the religious exemption. “Given the types of workplace discrimination we see increasingly against LGBT people, together with the calls for greater permission to discriminate on religious grounds that followed immediately upon the Supreme Court’s decision last week in Burwell v. Hobby Lobby, it has become clear that the inclusion of this provision is no longer tenable,” their joint statement said.

It was a sudden and shocking development for a bill that had previously been one of the groups’ top policy goals. The Gay & Lesbian Task Force even called on Obama to veto ENDA if it reached his desk with the exemption language included.

Other gay-rights voices urged caution. The Human Rights Campaign, the nation’s largest gay-rights organization, said it still supported ENDA but would fight for a narrower religious exemption in the bill. Third Way issued a memo titled “Don’t Abandon ENDA Over Its Religious Exemption,” noting that even with the exemption, the bill would represent huge progress and ensure protection for the vast majority of currently vulnerable LGBT workers.

Over the past decade, a growing partnership between gay-rights groups and religious leaders has been instrumental to the advancement of gay rights, both in terms of policy and in social acceptance. The partnership was mutually beneficial: Churches’ image benefited from showing a more tolerant face to the world, while gay-rights campaigners benefited from showing they weren’t opposed to faith. “I hope the larger progressive community is beginning to understand that we need people of faith for all of our struggles,” Alan van Capelle, who helped get gay-marriage passed in New York as head of the Empire State Pride Agenda, told me last year. “Once they are organized, they are an incredibly powerful force for change."

Now, however, some worry that that relationship is fraying as some in both camps retreat to absolutist positions. The executive-order debate split religious-left groups and gay groups alike into opposing camps. After the order was announced on Friday, without the ENDA-style religious exemption, one group, GetEQUAL, issued a statement lauding “the decision made by the Obama Administration to resist the calls by a small number of right-wing conservatives to insert religious exemptions into civil rights protections.” Progressives like Wear and Wallis, who see themselves as deeply, spiritually committed to gay rights, surely would be dismayed at being called “right-wing conservatives.” Such name-calling, advocates fear, could alienate allies that have been tremendously important to the cause of gay rights.

The larger fear is that such splits could bring back the bad old days when gay rights and religious rights were seen as irreconcilable—and liberals suffered politically for the image that they were alienated from religious values. The advocates in the middle of this debate hope too much progress has been made for the current controversy to undo it. Sharon Groves, director of Human Rights Campaign’s religion and faith program, acknowledged the events of the past few weeks have created tension. But, she said hopefully, “The deep work has already begun to happen in faith communities. I don’t think we’re going to see a return to the old culture wars.”