Hobby Lobby’s Queer Antecedents (A Tale of Two RFRAs)

In this forum, I have the privilege of introducing articles by Amy Livingston and Anna Kurhajec, Lisa Corrigan, and Alyssa A. Samek—activist scholars with a distinguished combined history of queer, trans, lesbian, feminist, anti-racist, labor, and other liberatory agitation. Their articles take up the queer significances of two interconnected forensic events: the U.S. Supreme Court’s June 30, 2014 decision in Burwell v. Hobby Lobby Stores, Inc., and the legislative failure of the 113th Congress Employment Non-Discrimination Act (ENDA). The confluence of Hobby Lobby and (not) ENDA can be read as a significant collective event for what has cohered into a national heteropatriarchal agenda perfidiously prosecuted by anti-feminist and anti-queer actors under the sign of “religious freedom.” But as each of the forum contributors argues in their own way, the full story is a bit more complex. To set the stage for their queer complications, I focus this introduction on a brief and partial history of the legal artifact that has made much of this heteropatriarchal “religious freedom” agenda possible—U.S. Public Law 103–141, or the Religious Freedom Restoration Act of 1993 (RFRA).¹

RFRA is probably best known today as the legislative basis for the Court’s 5–4 decision in Hobby Lobby to block the U.S. Department of Health and Human Services’s (DHHS) attempt to require that Hobby Lobby Stores and Conestoga Wood Specialties (both “closely held corporations”) comply with the Affordable Care Act (ACA) by providing health-insurance coverage for certain “methods of contraception” the Court deemed offensive to the “sincerely held religious beliefs of the companies’ owners.”² Justice Samuel Alito’s majority opinion not only undermined poor and laboring class women’s access to basic reproductive health technology, but also contributed to the most recent demise of ENDA, a bill that would (arguably) establish historic protections for trans, lesbian, gay, and bisexual workers in the United States. Hobby Lobby could not have happened without RFRA.³ It is possible to tell a queer story about Hobby Lobby and ENDA with RFRA as the main antagonist (featuring Justice Antonin Scalia, who provided RFRA’s primary inspiration, as a nefarious sidekick).

But although Hobby Lobby relied on RFRA, RFRA did not necessitate Hobby Lobby. I’ll let dissenting Justice Ruth Bader Ginsburg explain:

In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owner’s religious faith . . . persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.⁴

RFRA—passed in response to the Court’s 1990 decision in Employment Division v. Smith—is a law ostensibly about First Amendment protection for the “free exercise” of religion. It says that the government cannot unduly burden a person’s ability to exercise their religion without a good reason for doing so. But this innocuous law-about-religion works simultaneously as an inspiration and enabler for mainstream U.S. heteropatriarchal politics, and as a vital tool for obstructing the same. The story of Smith, RFRA, Hobby Lobby, and ENDA is one of the contradiction and unreliability inherent to official U.S. national rhetoric. It is no coincidence that Livingston and Kurhajec, Corrigan, and Samek respond to Hobby Lobby-ENDA as an opportunity to elucidate various and at times contradictory queer political possibilities latent in the intersections of these two forensic events. I hope that in first telling a story of the history of RFRA’s multiple real-and queer-political valences, this introduction will provide some useful context for the wonderful articles you are about to read.

The particular choice of “restoration” as the Religious Freedom Restoration Act’s titular verb begs the question of what had happened to this freedom, so as to require its restoration by an Act of Congress. According to RFRA Section 2, “Congressional Findings,” the answer is Employment Division v. Smith, authored by the noted anti-religionist Justice Antonin...