Moving Targets: Religious Freedom, Hobby Lobby, and the Future of LGBT Rights

Source: Ira C. Lupu, Alabama Civil Rights & Civil Liberties Law Review (Vol. 7, Issue #1, Fall, 2015), as part of a Symposium on “Anti-Discrimination Law & Policy after Hobby Lobby”, Forthcoming

From the abstract:
The imminence of nationwide marriage equality in mid-2015, close on the heels of the Hobby Lobby decision, suggests that LGBT rights and religious freedom are on a collision course. This paper is an attempt to navigate the spaces where such a collision is most likely.

Parts I and II both focus on federal law, where Hobby Lobby’s impact will be most immediate and direct. Part I sketches current LGBT rights under federal law, and then analyzes potential conflicts between that body of law and the federal Religious Freedom Restoration Act. Part II focuses on the ways in which Hobby Lobby is likely to color the conversation, legal and political, about expanding federal law protections against discrimination based on sexual orientation and gender identity. Part II includes consideration of arguments about accommodation of religious non-profit organizations.

Part III turns to state law, where the recent battles in Indiana, Arkansas, and elsewhere have been nationally explosive. In current state law, the geographical disconnect between religious freedom principles and LGBT rights is significant. Where state-based rights of religious freedom appear to be strong, LGBT rights are frequently weak; where statewide LGBT rights are strongest, religious exemption rights tend to be weak.

Part III.A. addresses current legal circumstances, including ongoing cases of vendors who refuse to serve same sex weddings, in light of this disconnect. Part III.B. analyzes recent and anticipated legislative fights, and the role that Hobby Lobby has played and will continue to play within those conflicts. Part III.B. includes the policy choices involved with respect to religious non-profit entities. Part III.C. focuses on the adjudicative battles that lie ahead between LGBT rights and religious freedom, the potential significance of Hobby Lobby for those contests, and the reasons that religious freedom claims in the commercial context are unlikely to succeed.