Over the holidays, while most of us were spending time with our families, a Texas District Court judge issued an injunction that may do irreparable harm to the rights of LGBTQ people in this country, and could harm legal abortions in the process.
The judge in question’s name is Reed O’Connor. And the injunction he issued blocks an Obamacare policy that seeks to extend protections under the Affordable Care Act to “women seeking an abortion,” and LGBTQ folks as well. The injunction’s implications are clearly and obviously destructive for both these groups, but less obvious is the fact that the judge’s ruling will likely open up the door to businesses wishing to discriminate against LGBTQ couples based on “religious freedom.”
You see, the problem with permitting businesses to discriminate against people based on their religious beliefs is that there’s not much in the way of limits as to how far it can go. What’s to stop a landlord from discriminating against LGBTQ couples looking for a rental? An employer could conceivably fire an employee for their choice of partner. And old situations like the baker or florist who doesn’t want to do business with someone based on their sexual orientation could result in legal challenges coming down squarely on the side of the bigot. The nightmare scenario, of course, would be a fundamentalist doctor refusing to treat someone in a life or death situation.
In addition to all this insanity, the injunction may embolden other legislators to take ridiculous steps like the North Carolina HB2 “bathroom bill.” Just this week, Texas enacted their own version of that poorly thought-out piece of legislation.
Republicans were crafty about getting this injunction enacted. They essentially “court shopped,” taking the case to a sympathetic district court and having them file an injunction that applies to the whole country. Because the move came weeks before President Obama leaves office and a day before the policy it blocked was due to be enacted, the injunction is likely to block the policy for good, even if Obamacare itself survives the Trump/Pence administration.
The nasty and far reaching effects of this injunction originates from the basis O’Connor chose for his decision; the Supreme Court’s Hobby Lobby decision from 2014. In that decision, the medical groups acting as the plaintiff had Christian affiliations, and were exempted from laws forcing them to provide contraception on the basis of their sincerely held religious beliefs. O’Connor used Alito’s decision in the case, which at the time worried LGBTQ activists who believed that the “religious exception” ruling could be used to deny care to LGBTQ people as well.
Mark Joseph Stern, legal analyst and writer at Slate put it perfectly.
‘Ever since the Hobby Lobby decision, progressives have warned that RFRA poses a grave threat to LGBTQ rights, fearing that businesses can use it to circumvent nondiscrimination laws shielding LGBTQ people. That fear is now an undeniable reality. O’Connor held that treating transgender patients—and even insuring transgender patients—“substantially burdens” insurance companies and hospitals’ “exercise of religion. With his decision, then, O’Connor provides a neat template for future judges irritated by nondiscrimination statutes: Make up a version of the law that isn’t real, then strike down the real law based on your made-up version of it.’
But wait. It gets worse. Sorry. Trump has promised to enact the First Amendment Defense Act, which would permit anti-LGBTQ religious exemptions in federal law. And members of Congress are already working to enact it.
If ever there was a time to start sticking up for our non-cis fellow Americans, now would be it.
Featured image courtesy of Pete Marovich on Getty Images. All rights reserved. Image has been modified from its original form.