All Fall Down: A Comprehensive Approach to Defeating the Religious Right's Challenges to Anti-Discrimination Statutes

Abstract

Marriage equality and religious liberty; Obergefell v. Hodges and Burwell v. Hobby Lobby; bakeries refusing to make wedding cakes for gay couples and commercial photographers turning away soon-to-be lesbian brides — these issues and cases that make up the “new normal” of our national fight over LGBT civil rights. The fulcrum of the modern-day fight over LGBT civil rights is at the intersection of religious liberty as asserted by for-profit corporations and state anti-discrimination laws asserted by LGBT people who are refused goods, services and other public accommodations by these for-profit corporations.Notwithstanding the significant victories of the LGBT civil rights movement over the past 20 years, culminating in Obergefell, anti-LGBT sentiment continues to run deep. The leading voice of the anti-LGBT rights movement is the Religious Right, whose goal is to stop and reverse these civil rights victories. While the Religious Right has vocally opposed LGBT equality and civil rights for decades, the strategy behind its opposition, and thus its narrative, has drastically changed over the past 45 years. What was a narrative that attacked and pathologized LGBT people in the 1950s through the 1980s, today is a narrative that frames the Religious Right as victims of secularism — embodied, in part, in the law — that infringes on their religious liberty.What is religious liberty? Why has the Religious Right recently changed its strategy to embrace the religious liberty narrative? What roles do Obergefell, Hobby Lobby, the federal Religious Freedom Restoration Act, state Religious Freedom Restoration Acts, and the First Amendment play in the Religious Right’s campaign for religiously-based exemptions from state anti-discrimination laws for for-profit corporations? And, most importantly, what are the legal arguments that the LGBT civil rights movement can make to defeat this campaign? Neither Obergefell nor Hobby Lobby answered these questions. This Article does. It addresses all of the legal claims asserted by the Religious Right in its campaign to secure exemptions from state anti-discrimination laws for for-profit corporations and presents a comprehensive legal framework for dismantling those arguments. It concludes that by utilizing this comprehensive legal framework, state anti-discrimination laws may — consistent with Religious Freedom Restoration Acts and the First Amendment — be applied to for-profit corporations, regardless of the purported religious beliefs of that for-profit corporation. Moreover, they should be so applied to protect the both the rule of law and genuine religious freedom, which can only truly exist in the context or religious pluralism.