'State Inaction,' Equal Protection, and Religious Resistance to LGBT Rights

Abstract

Now that the Supreme Court has held that states must recognize same-sex marriages, a new issue looms on the horizon: Must states also protect against sexual-orientation discrimination in the private marketplace? This Article contends that the answer under the Equal Protection Clause is “yes” for the forty-five-plus states that protect against marketplace discrimination on the basis of race, religion, national origin, and sex.

In the course of reaching that conclusion, this Article offers much-needed clarification of the Court's unsettled “state inaction” doctrine. Under that doctrine, a state’s failure to act may be immunized from challenge on the ground that the Constitution typically provides individuals with only “negative” rights to be free from adverse state action and not “positive” rights to demand favorable action by the state. But the state inaction doctrine, which was developed in the due process context, has no proper application in the equal protection context. Thus, it should not immunize from constitutional challenge either (1) proposed religious exemptions that are designed to allow business owners to refuse marriage-related services to same-sex couples or (2) state failures to protect against sexual-orientation discrimination in the first place. Instead, such exemptions and omissions from state antidiscrimination laws must be defended on the merits.

Part I of this Article concludes that the proposed exemptions, which were already vulnerable under United States v. Windsor, are even more difficult to defend in light of Obergefell v. Hodges. Part II then makes the more far-reaching argument against omissions. In doing so, it explains how requiring states with otherwise broad civil rights laws to protect against sexual-orientation discrimination flows naturally from key observations about equal dignity in Justice Kennedy’s recent equal protection opinions.

Keywords: Equal Protection, State Action, Antidiscrimination Laws, Public Accommodations, Religious Exemptions, Same-Sex Marriage, Obergefell, Windsor, Reitman, Flagg Bros., Schuette, Civil Rights

JEL Classification: K00