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9 Harv. L. & Pol'y Rev. 1 (2015)

handle is hein.journals/harlpolrv9 and id is 1 raw text is: Navigating the Minefield: Hobby Lobby and Religious Accommodation in the Age of Civil Rights Jennifer C. Pizer* Our twin constitutional commitments to liberty-specifically religious liberty-and to equality may be seen to pose challenging puzzles when the religious demands of some threaten harm to others. The task of managing tensions between such conflicting claims is not new. But in each generation, the puzzles are novel in their particulars and can seem more challenging than the earlier ones because our society continually diversifies. As a practical matter, however, most of these puzzles are and have been solvable for those participating in the public marketplace through application of past precedent and the Golden Rule. Put another way, to borrow a timely and time-honored reference from Justice Ginsburg, '[Yjour right to swing your arms ends just where the other man's nose begins.' 1 For lesbian, gay, bisexual, and transgender (LGBT) Americans seek- ing equality and inclusion in public life, and presenting what some see as a puzzle of competing needs, the maxim sometimes seems to translate to, Move your nose. And following the Supreme Court's decisions this past term in Hobby Lobby and Conestoga Wood,2 which hold that that owners of large, for-profit businesses essentially may, for religious reasons, line-item veto contraception coverage out of the insurance coverage the Patient Pro- tection and Affordable Care Act (ACA) requires them to offer their em- ployees,3 the message to workers apparently can be, Keep your sinful nasal spray prescription out of our health plan. Some may argue that we reduce the number of bloody noses by al- lowing more religiously segregated spaces and interactions, including in the commercial arena.4 But, despite the sincerity of those who believe their re- * Senior Counsel and Director, Law & Policy Project, Lambda Legal. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2791 (2014) (Ginsburg, J., dis- senting) (quoting Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 HARV. L. REv. 932, 957 (1919)). 2 Conestoga Wood was consolidated with Hobby Lobby in the Supreme Court. Hobby Lobby, 134 S. Ct. at 2751. 3 26 U.S.C.A. §§ 4980H(a), 4980H(c)(2), 5000A(f)(2) (2010). 4 Ryan T. Anderson of the Heritage Foundation exemplifies this view. Concerning the treatment same-sex couples should expect from for-profit businesses, he says: No one has the right to have ... a certain photographer to capture the first kiss, or a baker to bake the wedding cake .... Some citizens may conclude that they cannot in good conscience participate in a same-sex ceremony, from priests and pastors to bakers and florists. The government should not force them to choose between their religious beliefs and their livelihood. Ryan T. Anderson, Sexual Liberty and Religious Liberty Can Coexist. Here's How, THE DAILY SIGNAL, (Nov. 9, 2014), http://perma.cc/FL7Y-T8T6. See also Robin Fretwell Wilson, The

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