Bostock, Backlash, and Beyond the Pale: Religious Retrenchment and the Future of LGBTQ Antidiscrimination Advocacy in the Wake of Title VII Protection

Abstract

The Supreme Court’s landmark decision in Bostock v. Clayton County is undoubtedly an influential ruling affecting future LGBTQ rights projects. However, the Court’s ability to produce social and political change through legally formalistic decisions relating to highly contentious social issues is routinely undercut by public backlash. In the context of LGBTQ legal advocacy, social and political backlash against the Court’s ruling is perpetuated further when the Court negligently ignores the lived experiences of LGBTQ litigants arguing before the bench. Despite the recent history of pro-LGBTQ Supreme Court decisions, sexual minorities are still constrained to the margins of society and viewed as less than—or sometimes not even considered at all. As such, this Article provides strong evidence that courts eliminating symbolic manifestations of oppression through antidiscrimination law cannot be seen as a permanent pronouncement of society’s commitment to ending subordination of sexual minorities. This is especially true, as was the case in Bostock, when the Court fails to clarify the intersection of religious liberty and federal antidiscrimination law. As a result of the Bostock Court neglecting the lived experiences of LGBTQ employees, this Article suggests that Bostock served as a catalyst to a period of religious retrenchment of LGBTQ rights. In forming a countervailing force to religious retrenchment for future LGBTQ rights projects, this Article sets forth and applies a three-prong theoretical framework to nullify the threats of religious retrenchment on substantive equality.