Tuesday, July 22, 2014

Compelling interest

Yesterday law professor Ari Ezra Waldman on Towleroad contrasted Obama's Executive Order banning federal contractors from discriminating against sexual minorities with the Hobby Lobby decision recently issued by the Supremes. Today Waldman takes another look at the issue. That Hobby Lobby decision includes the sentence:
The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race...
Great sentence, says Waldman. Most of America agrees that discrimination based on race is bad. But what about what isn't said?

Yes, that sentence (written by Justice Alito) should be taken as an example that the Hobby Lobby decision won't tolerate religious claims to discriminate based on gender or other characteristics. But an important question remains. Has the government stated a compelling interest in banning discrimination against sexual minorities? The Supremes have sidestepped that point. Many judges aren't there yet. Congress isn't there yet. So stating a compelling interest may have to wait until a company with religious owners discriminates against us and the issue is again before the Supremes.

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