Religious Equality and its implications on LGBTQ+ rights in the US (Updated 2021)

America is known as a champion of democracy and among its “forefather” rights which had been cemented since 1791 is the freedom to exercise one’s religion encapsulated in the First Amendment to the United States Constitution. 

Today, that very democracy is called into question as it stands in conflict with the rights of the LGBTQ+ community. In history, religion has long been in conflict with this community citing them as abominations and no creations of their God which has led to hate and discrimination against this group.

According to a recent study last June by the Pew Research Center, although there is an increasing acceptance toward homosexuality, it has been observed that religious affiliation still has a substantial effect with those who belong to a certain religion as less accepting to homosexuality as opposed to religious “nones”. 

With the active support of the SCOTUS towards the rights of the  LGBTQ+ community evidenced in their June 2015 decision with Obergefell v. Hodges which ruled the constitutionality of same-sex marriages, religious conservatives contend that this infringes on their First Amendment rights.

Earlier this month, Justice Clarence Thomas attacked this decision in a concurrence written on behalf of himself and Justice Samuel Alito, as reported by The Atlantic. According to Zalman Rothschild, adjunct professor at New York University of Law, the criticisms of Thomas largely revolved around the implication of such laws with respect to the religious counterpart.

That is, “If gay couples have a constitutional right to marriage, the thinking goes, those who oppose gay marriage on religious grounds may be compelled to assist such marriages despite their sincerely held religious convictions to the contrary. This, in turn, makes it ‘increasingly difficult to participate in society.’”

Thomas also added that he wished that when these two rights are pitted against each other, “religious freedom should outweigh LGBTQ+ rights.”

This is exactly the case with Fulton v. Philadelphia wherein a Catholic adoption agency has filed a lawsuit against the city of Philadelphia for its refusal to contract with them after revealing that they will not work with same-sex couples as it’s a violation of their religious beliefs.

In 2018, the lower court had ruled against them providing that the city’s antidiscrimination measures were applied without bias and that the agency is not entitled to an exemption.        

The agency argues that Philadelphia itself considers various factors such as religious, economic, and racial in the process of determining where to place a child for his or her best interests and in doing so, considerations should also be given to agencies.

Specifically, the Catholic adoption agency should not be prohibited to consider the sexual orientation in the name of their religious belief otherwise, it should be held unconstitutional. 

This argument cites the case of the religious Colorado baker who won his case in the Supreme Court stating that “the state’s anti-discrimination law discriminatorily against religion because it allowed cake artists to refuse requests to make cakes expressing opposition to same-sex marriage but not to decline requests for cakes in support of it.”

The plaintiffs also further reasoned that the neutrality and general applicability (which limits religious individuals or groups from seeking exemption following the ruling on Employment v. Smith in 1990) was defied with the ‘one-sided application’. 

There was also an inherent disadvantage and discrimination between the two above mentioned cases wherein there was no law in Colorado against refusal to design a cake expressing opposition to same-sex marriage while there was a law that prohibits decline service based on sexual orientation. 

According to Rothschild, “The potential power of this interpretation of religious discrimination rests on the fact that arguments premised on protection from discrimination are based on the principle of equality rather than liberty.

Religious liberty may be no match for the ascendant equality rights in the LGBTQ and contraception contexts.” That is, Fulton argues that religion should be treated equally with secular interests and once couched on equality will legally be an equal to LGBTQ+ rights. 

The outcome of this case will set precedent for future jurisprudence and will set the tone on how LGBTQ+ rights interplay on religious grounds.

Furthermore, it will also set the foundation or the collapse of established anti-discrimination protections set by Bostock v. Clayton County which “purported to change the future of anti-discrimination employment law for LGBTQ employees by extending them protections under Title VII.”