All Fall Down: A Comprehensive Approach to Defeating the Religious Right's Challenges to Anti-Discrimination Statutes
54 Pages Posted: 26 Mar 2016 Last revised: 24 Dec 2016
Date Written: March 24, 2016
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, anti-LGBT sentiment continues to run deep. The leading voice against LGBT civil rights is the Religious Right. While the Religious Right has vocally opposed LGBT equality and civil rights for decades, its narrative has drastically changed. What was a narrative that attacked and pathologized LGBT people, today is a narrative that frames the Religious Right as victims of secularism — embodied in law — that infringes on their religious liberty.
What is religious liberty? What roles do Obergefell, Hobby Lobby, 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? What are the legal arguments that can be made to defeat this campaign?
Neither Obergefell nor Hobby Lobby answered these questions. This Article does. It addresses and dismantles the legal claims asserted by the Religious Right to secure exemptions from state anti-discrimination laws for for-profit corporations. It concludes that 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 those corporations. 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.
Keywords: sexual orientation, religious liberty, civil rights, constitutional law, anti-discrimination
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