Religious Liberty and LGBTQI Rights: Finding the Right Balance Ruth Bader Ginsburg Lecture

14 Pages Posted: 1 Aug 2019

Date Written: February 1, 2019

Abstract

Our country’s commitment to religious liberty and pluralism will sometimes conflict with our commitment to equality for LGBTQ+ individuals. In her February 1, 2019 Ruth Bader Ginsburg Lecture at Thomas Jefferson School of Law, former EEOC Commissioner Chai Feldblum identified and distinguished between four locations in which religious beliefs and practices are salient. Where the balance should be struck between the principle of protecting religious liberty and pluralism, and the principle of non- discrimination, should be different based on the location in which the need for balancing arises.

In the first location, are individuals who practice a religious faith and are seeking accommodations from others in the private sector. These individuals are not seeking an accommodation from the government in terms of an exemption from an otherwise neutral law. In the second location, are individuals who practice a religious faith, but in this location, they are seeking an exemption from the government from an otherwise neutral law. This can be an exemption from a non-discrimination law so they can fire or refuse to hire an LGBTQ+ person, an exemption from a public accommodations law so they don’t have to bake a cake for a gay couple getting married, or an exemption from a law that prohibits leaving items in a wildlife refuge so they can leave food for migrants crossing to this country illegally.

In the third location, are religious institutions (not individuals) that have employees that carry out a ministerial function for the religion. The archetype for this type of institutions would be a church, synagogue or mosque and the archetypal job would be a priest, pastor, Rabbi, Iman, or another religious position of that kind. In the fourth location, are religious institutions (not individuals), as well as entities controlled by religious organizations, such as religiously-affiliated schools or hospitals. These entities might argue that they should be permitted to discriminate in employment if doing so was necessary to preserve their religious character. Similarly, they might argue that they should be permitted to discriminate against customers, clients or visitors based on any of the characteristics enumerated above, again because doing so was necessary to preserve their religious character.

Keywords: religious liberty, pluralism, LGBTQ+, transgender, gay, equality, discrimination, employment law, public accommodations, individuals, religious institutions, religious organizations, Federal Civil Rights Act of 1964

JEL Classification: K00, K1, K10, K36, K49

Suggested Citation

Feldblum, Chai, Religious Liberty and LGBTQI Rights: Finding the Right Balance Ruth Bader Ginsburg Lecture (February 1, 2019). Thomas Jefferson Law Review, Vol. 41, No. 2, 2019. Available at SSRN: https://ssrn.com/abstract=3429311

Chai Feldblum (Contact Author)

Independent ( email )

No Address Available

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