Ethan Brown ‘25
Staff Editor
The Karsh Center for Law and Democracy hosted a panel on the intersection of LGBTQ+ rights and religious liberty on Friday, September 23. Panelists discussed conflict between activists on both sides in statehouses and courtrooms across the country before debating the merits of legislative intervention in addressing the issue.
The four panelists—former Utah Supreme Court Chief Justice Christine Durham, Yale Law School Professor William Eskridge, Jr., ACLU Women’s Rights Project Director Ria Tabacco Mar, and University of Illinois College of Law Professor Robin Wilson ’95—were joined on stage by Professor Craig Konnoth, who moderated the conversation.
The panel occurred just days after the Supreme Court denied Yeshiva University’s attempt to block a New York state ruling requiring the university to recognize an LGBTQ+ student rights group. Panelists also noted the relevance of pending Supreme Court case 303 Creative LLC v. Elenis before beginning the conversation.[1]
Professor Konnoth first asked the panelists for their perspective on the extent to which there is conflict, if at all, between LGBTQ+ rights and religious liberty in modern America. Justice Durham said that she did see a conflict between the two sides and pointed to a rise in militant religious assertiveness as a contributing factor in rising tensions. She also explained that dialogue surrounding religious liberty is increasingly focused on the free exercise of religion, almost to the point that activists neglect the Establishment Clause also included in the First Amendment.
“I am constantly reminding people that there are two clauses in the Constitution in the First Amendment regarding religion, and the first clause is that there shall be no establishment of religion . . . I find that a lot of the people I talk to want to go straight to free exercise of religion,” Justice Durham said.
Following up on Justice Durham’s comments on religious expression, Professor Eskridge emphasized that both parties—LGBTQ+ people and religious people—feel that their dignity and self-expression are at stake in interactions like that exemplified in the 303 Creative case. Just as being denied service because of one’s sexual orientation or gender identity is an affront to equality and liberty, Professor Eskridge noted, deeply religious individuals see their own freedom of expression in jeopardy amid changing cultural tides.
“Both sides see themselves as dispossessed,” Professor Eskridge said.
Tabacco Mar was reluctant to equate the two sides’ experiences and argued that conflict between LGBTQ+ rights and religious liberty is just “old wine in new bottles”—that is, a replication of similar battles between racial equality and religious liberty that unfolded in the courts last century. Tabacco Mar brought up the case of Newman v. Piggie Park Enterprises, Inc., where a South Carolina restaurant owner was sued for forbidding African Americans to dine inside his establishments. The courts deemed that, despite the owner’s deeply held religious belief that integration went against the will of God, the policy was incompatible with Title II of the Civil Rights Act of 1964, which protects access to public spaces, regardless of race.
Tabacco Mar said that the quandary of the website designer or cake baker who refuses to perform for a same-sex couple echoes the tension between race and religious belief shown in Piggie Park. She implored audience members to question their discomfort in extending the same protections for LGBTQ+ people in public spaces.
“If it feels uncomfortable in this context, I really urge everyone to ask themselves, ‘Why is that so?’ and to ask why the existence and equal dignity of LGBT people feels so troubling when we’ve come to accept equal dignity of so many others,” said Tabacco Mar.
Wilson agreed with Tabacco Mar that all LGBTQ+ people deserve to wear the “badge of citizenship” that comes with participating in public spaces. But she also cautioned that making these interactions a zero-sum game—and forcing a conflict by making people pick sides between a religious small-business owner and a same-sex couple—is a risky bet for LGBTQ+ rights activists.
“If Republicans see it as a conflict between LGBT persons and a shop owner, they’ll pick the shop owner,” said Professor Wilson.
Instead of forcing religious individuals to serve same-sex couples, whether for wedding cakes or marriage licenses, Professor Wilson said that state legislatures should work to carve out exceptions, so that people are not placed in a position where conflicts may materialize. As an example, she pointed to Utah’s enactment of a statute permitting clerks with religious beliefs against same-sex marriage to opt out of performing those ceremonies, provided that they assist in locating another party to solemnize the legal marriage.[2]
In response, Tabacco Mar raised the concern that once state legislatures get in the business of creating these “opt-out” policies, people will continue seeking increasingly broader exemptions.
Panelists then debated Professor Wilson’s suggestion that state legislatures should work towards forging a compromise between LGBTQ+ rights activists and religious liberty advocates. Professor Eskridge generally agreed with Professor Wilson on the importance of legislative compromise, and he emphasized the role of political pushback in protecting against excessive limitations on LGBTQ+ people’s ability to participate in the public sphere. Tabacco Mar and Justice Durham, however, were both skeptical of how effective state legislators are likely to be in resolving the conflict.
Justice Durham specifically called out the limitations inherent in legislative action, particularly in highly conservative states like her native Utah. “Having spent many years of my life working with the Utah legislature, we have a one-party system; they have so gerrymandered the electoral system that we will never—at least for the next ten years—get anything but not just Republicans, but Republicans who are more conservative than the population at large,” said Durham.
Inspired by audience questions, the panel then discussed the harms experienced by LGBTQ+ individuals who are denied service, as well as those incurred by religious people forced to provide services against their values. Justice Durham suggested that the harms experienced by small-business owners who refuse service are less significant than those suffered by LGBTQ+ people. Professor Wilson, however, expressed concern that the harms experienced by the religious cake baker or website designer may lead to his retreat from civic life, a similarly unacceptable outcome.
In the waning moments of the event, Tabacco Mar vocalized her frustration that LGBTQ+ people are made to compromise their identities for the sake of avoiding conflict and noted that the pain of being denied service cuts deep.
“I encourage everyone to think about what the harm really looks like for the couple that is turned away. It is enduring . . . and it forever changes your relationship with the marketplace,” said Tabacco Mar.
---
bwj2cw@virginia.edu
[1] In Creative 303, a Colorado wedding website designer is seeking to block enforcement of the state’s anti-discrimination law that would require her to serve LGBTQ+ couples, despite her religious opposition to same-sex marriage. The case is expected to be heard in October 2022.
[2] https://le.utah.gov/~2015/bills/static/sb0297.html