Supreme Court to hear two cases that could affect LGBT community

HobbyLobbyBy Lisa Keen
Keen News Service

The U.S. Supreme Court will hear two cases next week that test the degree to which employers may use their personal religious beliefs to deny certain health coverage for employees. Neither case involves any LGBT-related health coverage, but the decisions in both may affect whether employers will be able to cite religious beliefs to deny such services as alternative insemination and gender reassignment.

The cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood v. HHS, involve employers asserting religious beliefs as grounds for denying health insurance coverage for birth control. Both take issue with the Affordable Care Act. Hobby Lobby challenges the ACA implementing regulations that require employer health coverage plans provide women on their plans with the “full range” of “contraceptive methods.” Those regulations also authorize an exemption for “religious employer” and “religious nonprofit organizations that have religious objections to providing coverage for some or all contraceptive services.”

“A religious employer,” noted HHS’s brief to the Supreme Court, “is defined as a non-profit organization described in the Internal Revenue Code provision that refers to churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order.”

Hobby Lobby Stores and Mardel are two stores challenging the regulations. Hobby Lobby is a national chain of arts and craft supply stores. Mardel is an affiliated chain of Christian bookstores. Both stores are owned by five people (referred to as The Greens) who excluded contraceptive coverage from the health plans for their combined 13,372 employees, saying contraception goes against their religious belief that life begins “when sperm fertilizes an egg.”

The Hobby Lobby-Mardel owners filed the lawsuit, arguing that the 1993 Religious Freedom Restoration Act prohibits government from “substantially burden[ing] a person’s exercise of religion” unless the need to do so addresses a “compelling governmental interest” and is applied in the “least restrictive” way.

The 10th Circuit U.S. Court of Appeals ruled for the Hobby Lobby-Mardel, saying they do count, under the Restoration Act, as “persons exercising religion” and that requiring them to provide contraceptive coverage does “compromise their religious beliefs.”

HHS is appealing, saying the beliefs held by the owners of the two companies do not justify an exemption for the companies to a “generally applicable law that regulates only those corporations and not their individual owners.”

—  David Taffet

Utah will not recognize same-sex marriages performed before high court stay

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Utah Attorney General Sean Reyes issued a statement Wednesday saying  he was “unable to reach a legal conclusion as to the ultimate validity of marriage between persons of the same sex who completed their marriage ceremony in Utah between Dec. 20, 2013, and Jan. 6, 2014.”

“That question remains unanswered, and the answer will depend on the result of the appeal process,” continued Reyes. He said any same-sex couple applying for some state marriage benefit or recognition would be evaluated on a “case-by-case basis” by a “review team” established just for that purpose.

Reyes stated that the U.S. Supreme Court’s grant of a stay against the federal district court decision that struck down Utah’s ban on marriage for same-sex couples “means that Utah’s laws defining marriage … are again in effect.”

The attorney general’s statement acknowledges that 1,300 same-sex couples have married in the two and a half weeks since U.S. District Court Judge Robert Shelby issued his decision and immediately enjoined the state from enforcing its ban. The U.S. Supreme Court on Monday granted Utah’s stay against Shelby’s order.

Later, Utah Gov. Gary Herbert’s office issued a statement, saying “Based on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide.”

“There is no reason for the state to destabilize these families,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which just Wednesday sought designation from the 10th Circuit U.S. Court of Appeals to serve as co-counsel for same-sex couples on the state’s appeal of Shelby’s decision in Kitchen v. Herbert. “These couples are legally married, the state has been providing them with marital rights and protections, and it should continue to do so. There is no need for this kind of case-by-case review, and putting married couples and their families through this process is humiliating and will subject them to needless uncertainty and legal vulnerability.”

Jon Davidson, legal director for Lambda Legal, which has a number of marriage equality lawsuits in the works, including one in the 9th Circuit, said he believes “couples who married prior to the stay remain married.”

“They validly married pursuant to the law at the time they married, given that a court order allowed them to marry then,” said Davidson. But, he added, with the injunction against enforcement of the ban now stayed by the U.S. Supreme Court, “there is no court order preventing what the AG is suggesting be done.”

“Any couple whose marriage is denied recognition by the state would have a claim that refusing to honor their marriage violates their constitutional right, however, and I believe it would be a strong claim, given the vested property rights and reliance interest that couples who lawfully marry in a state have that their marriage will be respected,” said Davidson. “Accordingly, if the state does refuse to honor their marriage, it may be facing additional litigation.”

Human Rights Campaign President Chad Griffin said Attorney General Reyes’ action “harms hundreds of Utah families and denies them the respect and basic protections that they deserve as legally married couples.”

A private law firm, Magleby & Greenwood, is representing same-sex couples who initiated the Kitchen v. Herbert lawsuit in Utah.

LISA KEEN  |  Keen News Service

—  Steve Ramos

BREAKING: Court allows military to continue enforcing ‘don’t ask don’t tell’ pending appeal

The U.S. military can continue enforcing “don’t ask don’t tell” pending the government’s appeal of a district judge’s decision declaring the policy unconstitutional.

With one justice dissenting, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on Monday issued a stay of the district judge’s injunction barring the military from enforcing the policy.

The appeals court had already granted a temporary stay of the injunction, but Monday’s decision extends the stay for the duration of the appeal, which will take at least several months.

Chris Geidner at Metro Weekly reports:

“In addition to the fact that this case raises ‘serious legal questions,’” the court wrote, “there are three reasons that persuade us to grant a stay pending appeal.”

The reasons included that “Acts of Congress are presumptively constitutional,” that “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies” and that “the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal.”

Dan Woods, an attorney for the plaintiffs in Log Cabin Republicans v. United States, issued the following statement:

“The court’s ruling is a disappointment not only to us, but also to all homosexual servicemembers who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied. The decision only slows the day when military service will be available to all Americans, regardless of sexual orientation, who want nothing more than to serve their country honorably and patriotically. We will continue to fight on for the constitutional rights of these Americans and look forward to a favorable decision on the merits of the appeal. Meanwhile, we will discuss the court’s order with our client to determine whether we will ask for a review of the order by the U.S. Supreme Court.”

R. Clarke Cooper, executive director of Log Cabin, said in a statement, “Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform. Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights. In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy. The president claims to want to see ‘Don’t Ask, Don’t Tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns.”

—  John Wright