Introduction

The relationships between free exercise of religion, freedom from others’ religious exercise, and the freedom of all to participate as equals in public life—indeed, the very meaning of “religious freedom” and “equality”—have been contested unceasingly from before the uniting of our American states to the present day. The U.S. Supreme Court has been among the most visible arenas for these contests, and now is no different. As we prepare this double issue of Human Rights for you, the Court is considering whether states must fund religious education (Carson v. Makin), whether public school leaders—a football coach, for example—may prominently conduct Christian prayers while still in their official roles (Kennedy v. Bremerton), and the extent to which free expression rights permit business owners to refuse to make for same-sex couples the custom goods they routinely make for others, despite a state nondiscrimination law (303 Creative v. Elenis).

For many people who identify as lesbian, gay, bisexual, transgender, or queer (LGBTQ), the Supreme Court’s 2015 Obergefell v. Hodges decision, which recognized the freedom of same-sex couples to marry, was a joyous moment. And for some who applauded, it was a long-sought, crowning achievement. But, for some who did not applaud, especially for some who disapprove based on deeply held religious convictions, Obergefell was and remains a sign of growing, dangerous threats to the ability to believe and live freely according to religious and cultural traditions core to identity, community cohesion, and living a meaningful life. They have been joined by some who initially applauded the movement toward equality that Obergefell represents but since have become concerned about the implications for religious freedom in what they see increasingly as a zero-sum world.

Toward the end of his majority opinion in Obergefell, Justice Anthony Kennedy called for mutual respect among people of goodwill despite disagreements, even passionate ones, about marriage, a theme he revisited in his close-to-swan-song opinion in Masterpiece Cakeshop. For some who disagree with and are made uneasy by the Court’s Obergefell decision, these passages represent constitutional promises that they are not to be made second-class citizens or even pariahs due to their beliefs and traditions. Passages in subsequent cases have affirmed the promise that freedom and equal opportunities for same-sex couples and LGBTQ people more broadly are to co-exist with the freedoms of faith communities to believe, worship, and live according to their commitments.

Charting the relationships among these essential interests, and the proper role for government in the myriad contexts where the liberties of some intersect with the equality of others, is no simpler in 2022 than it has ever been. Making the exercise even more challenging is the surge of proposals by some state policymakers to curtail the rights and even information about LGBTQ people, especially LGBTQ young people. Meanwhile, many religious schools and service agencies see the advances of nondiscrimination rules, including those attached to significant funding, as existential threats to their character and autonomy.

The collection of articles that comprise this issue invites you to explore diverse perspectives on the current tensions between religious freedom and LGBTQ equality. Advocacy in and beyond the Supreme Court spotlights the quests of some to safeguard religious conduct and worldview and of others for protection against religiously motivated service refusals or condemnation. As to some questions, you may see a degree of harmony that surprises you. As to others, the fault lines may be familiar. And as to yet others, coming decisions in courts, legislatures, and voting booths will determine whether and how quickly the law moves in new directions. For now, enjoy these articles, many of which, especially when read together, show where sensible, mutual accommodations may be easiest to achieve.

Setting the Stage

Holly Hollman and Jon Davidson set the stage with their essays laying out the history of America’s “First Freedom”—what has been recognized as religious liberty, and both why and how our Founders intended that it be protected—and the emergence of the body of law recognizing and protecting the rights of LGBTQ people. The challenges arise when these values are seen to be in tension. Chai Feldblum explores this tension, affirming the need to protect both LGBTQ liberty and religious liberty, given the importance of religious identity and exercise to many people and the danger when religious freedom is invoked to deny the equal liberty of others.

Affirming and Protecting LGBTQ People

Presenting the perspective of a community whose rights have only partial protection, Jenny Pizer describes the design of and need for the Equality Act, a federal bill first introduced in 1974 and pending in the Senate Judiciary Committee as of this writing. Bobbi Bittker discusses the positive effects of the LGBTQ-inclusive curriculums adopted by some states, which contrast with the adverse impacts in those states that prohibit positive discussion of LGBTQ identities. Stuart Adams, president of the Utah Senate, and Robin Wilson attest to the similarly positive changes achieved in Utah by enacting partial protections against anti-LGBTQ discrimination. They stress the transformation possible through the affirmation of human rights for all and forward progress in incremental steps. Shannon Minter describes the change possibilities in conservative religious colleges and universities, as awareness rises among institutional leaders of the needs of their LGBTQ students, together with attention to safeguard what in those faith-based environments guides students uniquely to find meaning and thrive.

Protecting Freedom of Belief and Religious Communities

Richard Foltin addresses the need for a society that considers itself liberal to allow space for insular religious communities to adhere to norms that are not those of the prevailing culture, while Robert Tuttle discusses instances in which it may be appropriate, even obligatory, for the government to ensure access to the means to engage in religious worship and adhere to religious practices.

Stanley Carlson-Thies explains why he concludes that the way to balance LGBTQ rights with religious freedom is to grant broad freedom for faith-based organizations to flourish with limited government interference to maximize diversity of worldviews even as government broadly protects against anti-LGBTQ discrimination.

Cautionary Tales

But other authors offer cautionary tales about how religion has been used by those with power to excuse abuses. Rahmah Abdulaleem addresses historical reliance on religion to justify racial discrimination. Katherine Stewart calls out how religion has been used in recent U.S. history to justify and maintain white supremacy and how religious liberty protections have been used to secure conservative religious privileges.

Reviewing recent Supreme Court cases applying the ministerial exception to approve firings of teachers by religious schools, Sunu Chandy and Laura Narefsky point out what they consider the Court’s expansionist use—or misuse—of the First Amendment’s protection of religious institutions’ freedom to select and set employment terms for their ministers, an area Holly Hollman suggests is best understood as a matter of job duties more than job titles.

Hon. Victoria Kolakowski then explains the relatively newer religious debates about transgender and nonbinary people and the objections of some denominations to gender transition and gender-affirming medical care. Amy Myrick and Sabrina Merold continue the focus on religious or conscience objections by health-care institutions and workers to providing certain types of medical care by introducing us to the Do No Harm Act, a federal bill that aims to realign religious liberty protections with reproductive health rights, as well as health-care rights more broadly, rights against discrimination, labor rights, and others; she explains how religious freedom can be maximally protected while not blocking reproductive health care and defeating patient autonomy. Finally, April Love discusses the dangerous trend in recent years of political and social pressures to expand religious exemptions, including exemptions that permit discrimination.

How the Law Might Develop

Eric Mazur invites us to consider what our laws have recognized and counted as religion, deserving constitutional protection, given the increases in religious pluralism, greater secularization, reduced authority of some major religious institutions, and modern thinking about spirituality. Bradley Girard and Gabriel Hybel discuss the series of cases in recent years in which the Supreme Court has been increasingly solicitous of religious claims, without overruling the major precedents. They flag the references to what is being called “most-favored nation status” for religious free exercise claims, observing that some consider this a form of religious favoritism. Mark Wojcik explores the emergence of this approach in the recent decisions of the Supreme Court, including emergency application rulings without briefing and argument, which have allowed religious institutions to challenge and exempt themselves from public health measures imposed during the COVID-19 pandemic.

Addressing how Title VII’s accommodation of religious employers might be applied in cases of LGBTQ employees of religious employers following Bostock, Regina Stuart analyzes how unlawful sex discrimination might be distinguished from lawful adverse treatment for not complying with religious doctrine.

Finally, our focus turns to how free speech and expressive conduct claims have been intertwined with religious free exercise claims in cases involving the refusal of custom-made goods and services for same-sex couples’ weddings. Robert Ferguson, attorney general of the State of Washington, tells the story of fiancés Robert Ingersoll and Curt Freed, and florist Barronelle Stutzman, as it arrived and prompted his office to launch the Arlene’s Flowers v. Washington case to enforce that state’s Law Against Discrimination. He explains Washington’s position, ultimately successful in that case, that neither Stutzman’s religious rights nor her freedom to express her disapproval of same-sex couples marrying excused her refusal to serve them like other couples. Donald Verrilli picks up this theme and concludes our series of articles by anticipating what the Supreme Court might do in a case it has agreed to hear next term, 303 Creative v. Elenis, a sort of successor to Arlene’s Flowers brought by a designer of wedding websites who objects on free expression grounds to comply with Colorado’s law requiring, like Washington’s, equal treatment of same- and different-sex couples by commercial businesses.