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Does the Supreme Court treat anti-LGBTQ discrimination differently than racism?

In the past, the Supreme Court ruled against religious objectors to racial equality. Why hasn’t it done the same in cases involving religion and LGBTQ rights?

The Supreme Court’s recent ruling in favor of a Catholic foster care agency was as notable for what it didn’t say as for what it said.

The justices didn’t say the government must always offer religious exemptions to gay rights laws, although they criticized Philadelphia officials for refusing to do just that.

Justices also didn’t say LGBTQ rights should trump religious freedom. Instead, they described the government’s strong interest in protecting both rights.

Like other recent decisions involving religion and discrimination, the ruling left many questions unanswered. Among them is whether the court will one day treat LGBTQ rights laws the same as laws meant to end discrimination based on race.

In past rulings on religiously motivated racial discrimination, justices definitively came down against people of faith. They said the government’s interest in rooting out racism outweighed its duty to respect religious beliefs.

“The government’s fundamental, overriding interest in eradicating racial discrimination in education substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs,” the court said in Bob Jones University v. United States, confirming that faith-based schools that wouldn’t recognize interracial marriage could lose their tax-exempt status.

In an earlier case, Newman v. Piggie Park, justices described an effort to use religious rights to excuse racial discrimination as “patently frivolous.” In so doing, they confirmed a lower court ruling against a restaurant owner who said religious teachings against racial integration led him to serve Black customers outside.

So far, the Supreme Court has declined to take the same tone or apply the same standard in cases involving a clash between religious freedom and gay rights.

Instead, justices have called for compassion, leading some to claim that the court views religious objections to LGBTQ equality differently than objections related to race.

The Fulton decision “seriously undermines the leading argument from many on the left that support for man-woman marriage is akin to racist bigotry. Note there were not many 9-0 wins for Bob Jones University,” said Ryan Anderson, president of the Ethics & Public Policy Center in a statement released June 17. The Supreme Court ruled 8-1 against the school in 1983.

Other legal experts believe it’s too early to draw such conclusions. Yes, the court has asked the government to respect religious objectors to gay marriage, but it’s also sidestepped chances to clearly say religious freedom should always beat LGBTQ rights, said Nelson Tebbe, a law professor at Cornell University.

“I just think we don’t really know yet. We’re in the middle of this story,” he said.

Religious freedom v. LGBTQ rights

In its Piggie Park and Bob Jones decisions, the court made it clear that the First Amendment right to free exercise of religion is not absolute. Justices said religious freedom is sometimes outweighed by other policy goals, including ending racial discrimination.

Gay rights advocates saw recent LGBTQ rights cases as opportunities for the court to reiterate this message. Masterpiece Cakeshop featured a Christian baker in Colorado who wouldn’t provide cakes for same-sex weddings and Fulton involved a Catholic agency in Philadelphia that wouldn’t assess whether gay couples were suitable to foster or adopt.

Both suits pitted religious freedom protections against LGBTQ anti-discrimination law. In each, justices could have said the government’s interest in supporting LGBTQ rights justified limits on religious behavior, said Robin Maril, a visiting assistant professor of law at Willamette University in Salem, Oregon.

“The court could have come down and said the rules of Piggie Park apply,” she said.

Instead, justices twice punted on the issue, declining to offer a definitive formula for balancing LGBTQ rights with religious freedom. The Masterpiece Cakeshop ruling focused on Colorado officials’ treatment of the baker, while Fulton came down to the wording of Philadelphia’s contract with foster care agencies.

In both cases, the justices expressed sympathy for LGBTQ Americans who face discrimination. However, they also emphasized the need to respect people of faith who oppose same-sex marriage.

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them,” wrote now-retired Justice Anthony Kennedy in the Masterpiece majority opinion. “At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

In previous rulings on racial discrimination, the court used a less conciliatory tone, Tebbe said. Justices did not deny the actions of Bob Jones University stemmed from sincere religious beliefs, but they didn’t call for compassion or understanding, as they have in recent LGBTQ rights cases.

“The distinction between the language is pretty striking,” he said.

Unanswered questions

As Tebbe noted, the Supreme Court is still “in the middle of the story” on LGBTQ rights. Future rulings will decide whether it treats anti-LGBTQ discrimination the same as racial discrimination or offers unique religious exemptions in the context of gay rights.

A few justices already have signaled their willingness to take the latter path.

During oral arguments in the Fulton case, Justice Samuel Alito implied that the court’s ruling on same-sex marriage left the door open for religious exemptions, unlike its ruling on interracial marriage.

“Didn’t the court say that there are honorable and respectable reasons for continuing to oppose same-sex marriage? Would the court say the same thing about interracial marriage?” he asked.

The court did not answer Alito’s question in its eventual ruling. But it also didn’t reject them, a choice that some saw as a blow to LGBTQ rights.

“Let’s say that, in the Fulton case, we were talking about interracial marriage instead of same-sex marriage. I can’t say for sure, but I think the result might have been different in that situation,” Tebbe said. “The ruling suggests that the court, whatever it says,” draws distinctions between different types of civil rights laws.

Some legal scholars believe that, eventually, the court will explicitly say the government’s interest in protecting gay and transgender Americans does not always outweigh religious freedom. For example, justices could exempt faith-based adoption agencies or wedding vendors while requiring most other types of businesses and nonprofits to abide by LGBTQ anti-discrimination laws, Tebbe said.

“Some smart people are saying that the core of anti-discrimination law, including in the area of public accommodations, could be preserved while the court allows for religious exemptions in what it views as peripheral areas,” he said.

Such an approach would take years to sort out and could complicate efforts to root out other forms of discrimination. In the Masterpiece decision, Kennedy implied that the court should err on the side of limiting exceptions.

“When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion,” he wrote. “Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws.”

It’s still unclear how the court will respond to Kennedy’s warning. Earlier this month, the justices turned down a case, Arlene’s Flowers, that offered an opportunity to clarify their approach to LGBTQ rights. The case involved a florist who, for religious reasons, wouldn’t provide custom flower arrangements for a same-sex wedding. She’d lost in the lower courts.

“I was stunned when (the Supreme Court) did that,” Maril said.

It’s possible that justices are moving slowly and sidestepping key questions in order to give society more time to adjust to same-sex marriage legalization, Tebbe said. If so, they’d be following in the footsteps of their predecessors, who turned down the first opportunity they had to legalize interracial marriage since it came so soon after another major racial discrimination case.

“One bombshell at a time is enough,” said Justice Tom C. Clark at the time.

The court may also be waiting for Congress to take additional action on gay rights. Currently, anti-LGBTQ discrimination is not covered by federal civil rights law, but the Biden administration has made it a priority to change that.

Whatever the reason for the court’s current approach to LGBTQ rights, it’s fair to say the relationship between religious freedom protections and civil rights laws is still unsettled.

The justices “have left the door open for a more nuanced discussion,” Maril said.

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