Nancy J Knauer. Georgetown Journal of Gender and the Law. Volume 21, Issue 3, Spring 2020.
Introduction
The history of the LGBT rights movement in the United States has been a struggle for visibility, recognition, and the type of dignity that comes from being able to live an authentic life. Over the last fifty years, LGBT activists and advocates have engaged science, the law, religion, the media, and public opinion to make the case that LGBT people are a legitimate and deserving minority. At times, they have embraced the prevailing scientific understandings of LGBT identity; at other points, they have fought to change them. They have argued for enhanced legal protections as members of a “politically unpopular group” or a suspect category, and they have grappled with the distinction between status and conduct. Their opponents, on the other hand, have rejected the legitimacy of LGBT identities and have defended “conversion” therapy. Anti-LGBT advocates have argued in favor of what they characterize as traditional morality and have branded LGBT legal protections as “special rights.” Their practices and beliefs produce a politics of eradication which contests the very existence of LGBT identity through a process of conversion, containment, and redefinition.
Although the LGBT rights movement is often considered synonymous with legal challenges, it is important to remember that the law is only one of the multiple and interlocking institutional forces which have historically regulated and subordinated LGBT people. In the early days of the gay liberation movement, activists targeted psychiatry as the primary source of subordination, but the eventual declassification of homosexuality as a mental illness did not immediately translate to equality and acceptance. The same can be said for Lawrence v. Texas and the demise of criminal sodomy laws. (Despite the importance of that U.S. Supreme Court decision, the end to criminalization did not cause other legal disabilities to melt away. Even the Holy Grail of marriage equality has proven to be only a partial victory, as it has underscored the persistent inequalities and disparities experienced by LGBT individuals and has prompted calls for broader and more comprehensive religious exemptions.
Each of these milestones—declassification, decriminalization, marriage—may have been a necessary step in the trajectory of LGBT liberation, but none was sufficient to secure liberation, due to the complex and overlapping nature of LGBT subordination. Multiple institutional forces—including law, science, religion, and morality—have regulated LGBT identities, so the removal of one disabling institutional force would not automatically displace the rest. Mental illness was backstopped by criminal prohibitions, which yielded to traditional morality, which then became the template for broad religious exemptions. Moreover, the fundamental premise of LGBT subordination in the U.S. has been that LGBT identities are illegitimate. Large segments of society still believe that LGBT identity is a choice that is false, ungodly, delusional, immoral, a sign of mental illness, or an expression of depravity. In this way, the debate over LGBT rights has ultimately been a debate over LGBT people and their right to exist. It is not simply a question of which rights to extend to LGBT people, and on what terms, but rather whether LGBT people should exist in the first place. Even today, for many people, including prominent decision makers and religious leaders, the answer to that question is “no.”
This core rejection of the inherent humanity of LGBT people and their right to self-determination has produced a pernicious politics of eradication that transcends our understanding of subordination. Rather than simply contain and silence LGBT identities within an existing hierarchy, its goal is to abolish LGBT identities completely. This goal has defined much of the opposition to LGBT rights and has been expressed at different times through different institutional forces—illness, criminality, immorality, and sin. At its most basic, the fundamental belief that LGBT identities are illegitimate has fueled the barbaric efforts to “cure” or “convert” LGBT people, especially LGBT youth. Once a prescribed therapeutic intervention for homosexuality, conversion therapy continues to be practiced by some therapists and in some religious settings. In the face of universal condemnation by the scientific and medical communities, the 2016 GOP Platform specifically mentioned the need to protect parental rights to subject children to controversial therapies.
The politics of eradication continues to inform present-day policy initiatives on both the state and federal levels, despite tremendous gains in terms of legal recognition, political empowerment, and social acceptance for LGBT people. It has driven a spate of anti-trans legislation on the state level that defines gender as the sex assigned at birth. These bills touch on all aspects of the lives of transgender people, especially transgender children. They limit access to gender-confirming medical care, prohibit transgender students from participating in sports, and require transgender people to use the bathroom of the sex they were assigned at birth. For example, a bill in South Dakota attempted to silence positive portrayals of transgender identities in schools. Based on the fear that LGBT identities spread like a contagion, the bill was similar to the “no promo homo” laws which were enacted in states during the Culture Wars of the 1990s and which remain in place in a number of states. The desire to silence LGBT identities was also reflected in the early use of obscenity laws to stop the spread of homosexuality.
At the federal level, the Trump administration has reversed many Obama-era initiatives that recognized and protected LGBT identities, such as the transgender military ban. Moreover, it has embarked on an aggressive campaign to remove any acknowledgment of transgender people or identities from federal programs and civil rights protections. A new proposed federal definition would establish gender as a biological and immutable fact determined at birth. If adopted, the new definition of gender would end federal recognition of the approximately 1.4 million Americans who do not identify with the sex they were assigned at birth. Numerous agencies have already rescinded Obama-era protections for transgender people in a variety of spaces, including in prisons, homeless shelters, and schools.
It is important to neither overstate nor understate the impact of the politics of eradication on LGBT people and their families. First and foremost, LGBT people are resilient. The politics of eradication is, at best, a politics of denial. The practices of conversion, containment, and redefinition are not sufficient to stop individuals from identifying as LGBT. Conversion therapy is not only immoral, it does not work. After decades of scientific inquiry, it is clear that LGBT people cannot “change”—nor should they be forced to try. The containment and silencing of LGBT identities to stop contagion did not work in the 1950s when obscenity laws were used to stop the distribution of homophile newsletters, and it will definitely not work in the age of online communities and interconnectedness. An official act of redefinition cannot erase the lived experience of LGBT people or their dignity. The Defense of Marriage Act that defined marriage at the federal level did not stop couples from getting married, nor did it threaten to banish them, as the Commonwealth of Virginia did to Mr. and Mrs. Loving in the 1960s. Likewise, President Trump’s proposed transgender policy will not outlaw transgender Americans.
That said, these policies and practices cause real and lasting harm when they deny the basic humanity of LGBT people. They deny tangible benefits, exacerbate existing disparities, and signal official disapproval that can encourage more restrictive state laws, as well as bullying and violence. Countless individual testimonies speak to the tremendous pain and devastation caused by conversion therapy. Forbidding schools from talking about transgender identity further isolates and marginalizes transgender youth. The extraordinarily high suicide rate and incidence of homelessness among LGBT youth should be sufficient to show the impact of continued attacks on the legitimacy of LGBT identities and the humanity of LGBT people. The proposed federal redefinition of gender will have a sweeping impact on transgender Americans by denying them access to health care and protection under the federal civil rights laws, including Title IX, which applies to schools.
At the most fundamental level, the debate over LGBT rights has always been a debate over the right of LGBT people to exist. This Article explores the politics of eradication and the institutional forces that are brought to bear on LGBT claims for visibility, recognition, and dignity. It is divided into three sections, each of which uses a distinct institutional lens—science, law, and religion. The first section engages the fields of science and medicine, which helped produce the initial iterations of LGBT identity. It charts the evolution of scientific theories regarding LGBT people beginning in the nineteenth century, and it places a special emphasis on how these theories were used to justify both LGBT subordination and liberation. The second section shifts the focus to the legal battles over LGBT rights in the 1990s, which began at approximately the same time the scientific community began to examine the biological underpinnings of LGBT identities. It reviews the legal and political advancements that were facilitated, at least in part, by the emerging scientific theories of LGBT immutability and by a growing public commitment to the inherent dignity of LGBT people. It concludes with the marriage equality cases. The third, and final, section focuses on religion and morality. Opponents to LGBT rights once based their objections on religion and “traditional morality,” but the Supreme Court rejected those “profound and deep convictions” in Lawrence. Today, the same sort of claims based on religion and morality are being used to advocate for expansive religious and moral exemptions from laws designed to protect the dignity of LGBT people. With the present turn back to religion and morality, the cycle of subordination has come full circle. Although the means have changed, the goal to eradicate LGBT identities-whether from public life or more targeted venues—remains the same. A brief conclusion discusses the future of LGBT rights and why it is imperative to counter the politics of eradication by continuing to assert the intrinsic morality of LGBT identities and humanity of LGBT people.
Science
It is fitting to begin with a discussion of the role of science and medicine in the struggle for LGBT rights, because, in many ways, these fields articulated the first LGBT identities. In the latter part of the nineteenth century, Victorian sexologists identified, named, and studied a distinct type of individual who experienced “contrary sexual feeling,” whom they called an invert. At the time, both religion and law imposed harsh proscriptions on sodomy and other expressions of same-sex sexuality and transgender identity. The theory of inversion, however, shifted the focus from particular sex acts and behavior to a specific kind of individual.
It also asserted, for the first time, the medical profession’s jurisdiction over the lives and identities of LGBT people.
Over the next century, scientists and medical professionals classified and reclassified individuals experiencing same-sex attraction or gender variance as inverts, homosexuals, transsexuals, and, finally, as gay and transgender. The theories of the sexologists were eventually replaced by a Freudian psychoanalytic model, which then gave way to a genetic or biological framework. Each new theory and classification presented a different view of causation, the efficacy of therapeutic intervention, and the prospect or desirability of a cure. Each new theory also invited or informed different legal responses. For example, the naturalness of congenital inversion suggested that sodomy should be decriminalized, but the acquired nature of homosexuality under the psychoanalytic model led to harsh punishments and ruthless attempts to effect a cure.
The explanatory power of the various theories often found a receptive audience among LGBT people, who, unsurprisingly, turned to the best scientific minds of their time to explain their profound feelings of difference. Generations of people who were labeled as inverts, homosexuals, transsexuals, gay and lesbian, and LGBT have embraced these theories, at least to some extent, and have willingly participated in medical studies. With each new explanation and theory, LGBT people have attempted to harness their liberating potential—whether to find a “cure” for their perceived affliction or to argue for progressive legal and social reforms.
Inversion and the Sexologists
Working in the latter part of the nineteenth century, the sexologists, most notably Richard Krafft-Ebing and Havelock Ellis, considered individuals who experienced same-sex attraction and perceived gender variance to be distinct, with a set of clearly defined characteristics, traits, and failings. As Foucault famously observed in his History of Sexuality, “[t]he sodomite had been a temporary aberration; the homosexual was now a species.” Inversion was characterized by varying degrees of cross-gender identification; Krafft-Ebing once described female inversion as “the masculine soul, heaving in the female bosom.” Working from rigid gender roles and a strict presumption of heterosexuality, the sexologists reasoned that a woman who desired a woman was acting like a man; she was experiencing contrary sexual feelings. Beyond simple same-sex desire, Krafft-Ebing theorized inversion as existing along a continuum of varying stages of severity ending with complete androgyny for men or gynandry for women, where the invert experienced signs of physical inversion that we would now refer to as intersex conditions.
The sexologists believed that inversion was a naturally occurring biological variation or congenital predisposition. The naturalness of inversion generally argued against any therapeutic intervention or attempts at a “cure.” Both Krafft-Ebing and Ellis claimed that scientific advances in the study of human sexuality should direct legal reform with regard to the regulation of sexuality. In the case of inverts, Krafft-Ebing argued that the law should “cease to punish them” and that society should not stigmatize them because of the terrible toll it takes on the invert, resulting in “mental despair… even insanity and suicide… at the very least, nervous disease[.]” In addition to the sexologists, homosexual emancipation organizations, such as the German Scientific-Humanitarian Committee and individual social activists, including Edward Carpenter, used the scientific insights of the sexologists to argue for legal and social reform. For example, the Scientific-Humanitarian Committee lobbied vigorously for the repeal of paragraph 175 of the German Imperial Penal Code that criminalized sodomy.
The Sexual Psychopath and the American Freudians
In the early part of the twentieth century, the views of the sexologists were gradually displaced by Freudian theory that focused on interior selves and the unconscious. Psychoanalytic theory advanced a new understanding of same-sex attraction and rejected the sexologists’ belief that homosexuals were simply born that way—a naturally occurring variant. Unlike early sexologists who conflated same-sex attraction with transgender behavior, Freudians developed a separate theory of gender identity based largely on nurture rather than nature. Freudian theory characterized homosexuality as a perversion of the normal sex drive, which occurred during the course of an individual’s natural psychosexual development, from a state of original bisexuality.
Initially, the psychoanalytic model did not endorse a therapeutic response to homosexuality, based on the conviction that homosexuality represented a perversion of the sex drive rather than a neurosis. In Freud’s 1935 “Letter to an American Mother,” he reassured a mother who was worried about her son by noting that “many highly respectable individuals of ancient and modern times have been homosexuals.” He explained that “homosexuality is assuredly no advantage, but it is nothing to be ashamed of, no vice, no degradation, it cannot be classified as an illness; we consider it to be a variation of the sexual function produced by a certain arrest of sexual development.” Freud also opined that it was “a great injustice to persecute homosexuality as a crime.”
In the United States, this relatively benign view changed drastically in the 1940s, with the reappraisal of homosexuality by a group now referred to as the “American Freudians.” They rejected the Freudian concept of an initial state of bisexuality, assumed the potential for universal heterosexuality, and theorized homosexuality was a phobic response to the opposite sex. In particular, they believed that homosexuality was often caused by a sexual encounter with an older predatory homosexual. This led to a distorted view of the homosexual lifecycle, where older homosexuals indoctrinate young children, who then grow up to be sexual predators.
Unlike Freud, the American psychoanalysts believed that homosexuality was responsive to therapeutic intervention, because it was a phobic or neurotic response. This therapeutic optimism led psychiatrists to develop an arsenal of procedures and protocols designed to cure homosexuals, including, at one time or another, electro-shock therapy, aversion therapy, and even pre-frontal lobotomies and other forms of psychosurgery. The first Diagnostic and Statistical Manual of Mental Disorders (DSM-I) published in 1952 listed homosexuality as among the most severe sociopathic personality disorders. The severity of the diagnosis meant that individuals could be involuntarily committed to a mental institution for treatment. It also made them unfit parents and ineligible for military service, as well as most other jobs.
The theory of homosexuality espoused by the American Freudians informed a wide range of criminal laws, which were designed to disrupt the sexual predator lifecycle and isolate homosexuals. It also gave rise to a vicious stereotype that continues to live on in anti-LGBT propaganda: that homosexuals prey on children. Sexual psychopath laws authorized the admission of an individual charged with a sex crime to a mental institution for an indeterminate period of treatment before standing trial for the underlying criminal charge. Throughout the 1950s, federal, state, and local governments engaged in surveillance of suspected homosexuals and homophile organizations. Homosexuals were also discharged in great numbers from government employment as the result of periodic “witch hunts,” which were carried out on the federal, state, and local levels.
Perhaps surprisingly, during this period, many homosexuals welcomed the account of homosexual development offered by the American Freudians, and many willingly entered therapy hoping to find a “cure” for their condition. The small homophile movement that began in the 1950s endorsed medical and psychiatric research into not only the cause, but also the cure, of homosexuality. For example, the two largest homophile organizations, the Mattachine Society, founded in 1950, and the Daughters of Bilitis (DOB), founded in 1955, both adopted a neutral stance regarding scientific research into homosexuality and included commitments to such research in their official statements of purpose. The cooperative relationship between the homophile organizations and psychiatry was not officially severed until 1968, when the North American Conference of Homophile Organizations adopted a platform that declared “Gay Is Good” and unequivocally rejected the belief that homosexuals were mentally ill.
Gay Liberation Movement and the End of Diagnosis
Historians generally point to the 1969 Stonewall Riots in New York City as the beginning of the Gay Liberation movement. Influenced by the New Left, Gay Liberation quickly eclipsed the more cautious and assimilationist homophile movement with confrontational politics and radical calls for autonomy and self-determination. Gay liberationists forcefully challenged the classification of homosexuality as a mental illness, because they saw it as a major obstacle to achieving equal rights and full acceptance. They pointed to new scientific studies that showed no difference between homosexual and non-homosexual test subjects and argued for the declassification and deletion of homosexuality from the Diagnostic and Statistical Manual. Under sustained pressure from gay activists, the American Psychiatric Association (APA) voted to declassify homosexuality in December 1973, prompting one newspaper to declare, “20 Million Gain Instant Cure.”
The Gay Liberation movement was short-lived, but its emphasis on freedom of choice, autonomy, and sexual liberty ushered in a new way of talking about sexuality and gender in the United States. This focus on individual agency was even reflected in the wording of the first anti-discrimination protections adopted during the 1970s at the municipal level, which routinely used the term sexual preference. To the contrary, later protections opted for the term sexual orientation, in order to signal something more than a mere preference that was either immutable or difficult to change.
Despite high expectations, the declassification of homosexuality did not lead to immediate legal or political gains. Sodomy remained criminalized in the majority of states. No state-wide antidiscrimination protections were enacted until nine years later, in 1982, although some local governments had extended protections on the basis of sexual preference. Moreover, the 1973 declassification of homosexuality was partially because of the newly created category of “ego dystonic homosexuality,” which applied when an individual was bothered by their homosexuality. It remained in the Diagnostic and Statistical Manual until 1989. Declassification of homosexuality as a mental illness may have been a necessary step to ensure “liberation,” but it was in no way sufficient, because the label of mental illness was never the only cause of LGBT subordination. We will see this theme again in the next section with respect to the 2003 landmark ruling, Lawrence v. Texas, which invalidated criminal sodomy laws.
It is also important to recognize that the declassification of homosexuality by the APA did not completely get rid of the notion that homosexuality was a disease that must be cured. The belief in a “cure” is reflected in the harmful practice of conversion therapy. The discredited theories of the American Freudians remain an integral part of the lexicon of conversion therapists. Reparative therapists such as Joseph Nicolosi, who founded the National Association of Reparative Therapists (NARTH), claim they only seek to treat individuals who are distressed by their homosexuality and who otherwise would be denied the opportunity to seek treatment. Nicolosi referred to these individuals as “non-gay” gays because, inter alia, they desired the traditional markers of a heterosexual lifestyle. According to this post-1973 psychoanalytic model, same-sex desire is a “defensive detachment” from members of the same sex, as opposed to a phobic reaction to members of the opposite sex. The “defensive detachment” typically stems from a hurtful experience with the parent of the same sex. As a result, the individual stops identifying with members of the same sex and “needs for love, dependency and identification which are normally met through the medium of such an attachment, remain unmet.” Under this theory, individuals suffering from this defensive detachment turn to homosexuality as a “reparative device.” It operates as an “attempt to fulfill a deficit in wholeness of one’s original gender.” So-called “reparative therapy,” such as that advocated by Nicolosi, is designed to address this gender deficit and produce “good heterosexual functioning.”
Many ex-gay ministries also base their counseling programs on the gender deficit theory of homosexuality, although some eschew any psychological explanations as unbiblical and prefer to rely solely on Scripture for therapeutic guidance. All major medical associations have rejected the practice of attempting to “change” sexual orientation. Gender deficit theories also inform attempts to “change” gender identity, which are sometimes conflated with sexual orientation conversion efforts. As gender identity has become a more visible issue, medical organizations have amended their anti-conversion statements to include gender identity.
Increasingly, jurisdictions are taking steps to prohibit conversion therapy for children under the age of eighteen, including twenty states and the District of Columbia. As explained in Section IV, success of the state-level bans on conversion therapy has led to various legislative initiatives to roll back this trend and carve out exceptions for conversion therapy, based on religious or moral beliefs. A particularly hot-button topic is whether parents have the right to make health care decisions on behalf of their minor children. For example, the 2016 Platform of the Republican National Committee specifically affirmed the right of parents to choose controversial “treatment or therapy” for their children. Ironically, this asserted parental right seems to contradict legislative efforts to prohibit parents from authorizing gender-confirming medical treatment for their minor children.
Although homosexuals were officially “cured” in 1973, transgender individuals remained under the stigma of a mental disorder until much more recently. Gender identity disorder (GID) was classified as a mental disorder subject to medical intervention until 2013. After considerable lobbying by LGBT groups, the APA eventually recognized the risk of stigmatization that attached to a GID diagnosis and reclassified GID as Gender Dysphoria in the latest addition of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The new classification of Gender Dysphoria focuses on the distress caused by the condition and “removes the connotation that the patient is ‘disordered.'” However, in many instances, a positive diagnosis of Gender Dysphoria remains necessary to access gender medical intervention, thereby acting as a gatekeeper for gender-affirming care.
“Born This Way” and Bio-Science
Both the American Freudians and Gay Liberationists believed that individuals either became LGBT or chose to be LGBT, as opposed to the sexologists whose theories of inversion looked to nature rather than nurture. The declassification of homosexuality and the emergence of the contemporary LGBT rights movement marked the beginning of a renewed understanding of sexual orientation and, by extension, gender identity as innate human characteristics. To quote Lady Gaga, LGBT individuals are simply “Born This Way.”
Beginning in the 1990s, a number of highly publicized scientific studies pointed to the possibility that sexual orientation has a genetic or other biological cause. This research represented a departure from the psychoanalytic school and a return to the belief that sexual orientation and gender identity was innate and inborn. The revived emphasis on nature, rather than nurture, occurred at a time when gay rights advocates were shifting their litigation strategy from Due Process claims to Equal Protection arguments, because the former had been effectively foreclosed in 1986 by Bowers v. Hardwick. The possibility of a “gay gene” or other biological determinate seemed to fit neatly into the then-existing paradigm of “immutability” required to trigger suspect classification and strict scrutiny under the Fourteenth Amendment.
The early studies of a “gay gene” came from three distinct areas of research: neuroanatomical research, heredity studies concerning the incidence of homosexuality in families, and genetic linkage studies. Simon LeVay’s 1991 study reported anatomical differences between homosexual and heterosexual men in the portion of the hypothalamus responsible for sex drive, known as the INAH-3. His study suggested a correlation between INAH-3 size and sexual orientation in men, but failed to establish a causal link. The best known heredity study of the period was a twin study by J. Michael Bailey and Richard Pillard, which was also published in 1991. The study reported an increased likelihood that identical twins would both be gay if one twin were gay. Dean Hamer’s 1993 genetic linkage was widely reported as having identified the “gay gene.” Hamer pursued a genetic marker to account for the higher incidence of homosexuality identified among the maternal relatives of gay men. Hamer found statistically improbable similarities in the q28 region of the X chromosome that led him to conclude that “we have now produced evidence that one form of male homosexuality is preferentially transmitted through the maternal side and is genetically linked to chromosomal region Xq28.”
These studies were front-page news and the coverage was overwhelmingly positive. As early as 1991, Peter Jennings, then-anchor for the ABC evening news, announced that “new evidence… about what causes a man to be homosexual .. . suggests that the answer, to a very large degree, may be found in a person’s genetic inheritance.” The studies were also widely praised by gay men and lesbians who believed that their findings confirmed what they already intuitively knew, namely that they were indeed “born that way.”
Since the 1990’s, the search for the gay gene and definitive proof that sexual orientation is biologically determined has continued in earnest, and researchers have added gender identity to their agendas. A recent study purported that facial recognition technology could predict sexual orientation—giving new credence to the concept of “gaydar.” Although the weight of the scientific evidence remains inconclusive, the assorted studies suggest a genetic or other biological link with regard to sexual orientation and gender identity. Despite the absence of scientific certainty, there has been a tremendous shift in public opinion regarding whether one is born gay or chooses to be gay. Presently, a majority of Americans believe that gay men and lesbians were born that way, whereas only thirteen percent of those surveyed in 1977 thought that homosexuality was inborn.
There is one segment of society that has steadfastly rejected the notion that sexual orientation and gender identity are inborn. Opponents of LGBT rights contend that the “gay lifestyle” and being transgender are both choices. Take, for example, the heated rhetoric around the state-level bathroom bills, which often raises the specter of a male sexual predator who claims that he is a woman to gain access to the ladies restroom. The volitional nature of both sexual orientation and gender identity is key to anti-LGBT arguments against any sort of protected status for LGBT people, because if their identity is volitional, then they are not a real minority. Moreover, the assertion that being LGBT is a choice is the premise of both conversion therapy and the conviction that it is possible to change one’s sexual orientation and gender identity. Ex-gay and ex-transgender organizations and ministries exist to spread the word that being LGBT is a choice and that it is possible to change. By focusing on the element of choice and the ability to change, anti-LGBT advocates place the emphasis squarely back on acts and behavior, rather than individuals with a distinct identity. In so doing, anti-LGBT advocates attempt to not only destabilize LGBT identities, but to eradicate them completely because they believe that being LGBT is not a choice that anyone should make.
Law
The previous section charted the ascendency of the role of science in the subordination and liberation of LGBT people and how the medicalization of LGBT people informed their position under the law. This section focuses on the major legal challenges to secure LGBT rights, which began at approximately the same time science turned its attention to investigating a biological cause for homosexuality. Beginning in the mid-1990s, the legal advances in LGBT rights started to focus on the recognition of same-sex relationships and, ultimately, marriage equality. The high-profile U.S. Supreme Court cases of Romer v. Evans and Lawrence v. Texas established important constitutional benchmarks—but did not expressly endorse any higher level of scrutiny for LGBT people. At the state level, considerable gains were also made through both favorable state supreme court cases and legislative initiatives.
It is tempting to look back at these legal advancements and see a clear trajectory of positive progressive change, but that is far from the reality. Many gains were partial, such as the differing forms of relationship recognition adopted by the various states: domestic partnerships, registered domestic partners, reciprocal beneficiaries, and civil unions. Some of the initial gains were later overturned or superseded by citizens’ initiatives and other forms of direct democracy. For example, in California, same-sex couples were granted the right to marry under a state supreme court case in 2008, only to have that right overturned by Proposition 8 several months later. Litigation was necessary to establish that the couples who married after the court decision, but before Proposition 8 passed, would remain legally married. Throughout this period, LGBT rights became subject to extreme regional variation, as individuals who were married in one state would see that status change as they travelled through sister states. The constant upheaval caused by these divisive ballot initiatives further politicized LGBT lives and identities, while once again challenging their basic humanity.
The advent of nationwide marriage equality did not fully resolve these regional disparities. Instead, it resulted in a serious equality gap—or perhaps an equality leap, because there were no general LGBT anti-discrimination protections at the federal level or in the majority of the states. Accordingly, in the majority of states, a same-sex couple who exercised their constitutional right to marry could be legally fired or evicted from their homes or denied service at a place of public accommodation. They could be denied medical care or financing to purchase a home due to their sexual orientation. Even fewer states extend protections based on gender identity. In addition to facing bias and discrimination, trans-gender individuals continue to face numerous obstacles regarding safety, legibility, and inclusion, as evidenced by “bathroom bills” and other bills designed to deny or demonize the existence of transgender identity. The following section reviews the major legal challenges to securing LGBT rights in chronological order, beginning in the mid-1990s—at the same time science was working to identify a biological cause for same-sex attraction—and ending with nationwide marriage equality in 2015.
Don’t Ask, Don’t Tell and Baehr v. Lewin
In 1993, the Hawai’i state supreme court decided Baehr v. Lewin, a breakthrough case that indicated legal recognition of same-sex relationships could be attainable under state law. It was the same year that Dean Hamer’s genetic linkage study reported to have discovered the “gay gene,” but the Culture Wars were at their height. Appeals to traditional morality vilified and demonized gay sexuality. The HIV/AIDS epidemic was still unmediated by the medications that would eventually allow individuals to live with the disease, and the number of AIDS-related deaths in the U.S. for that year alone exceeded 45,000. Congressional hearings on the military’s “Don’t Ask, Don’t Tell” policy purported to expose the “Gay Agenda” and document the threat that openly gay service members would pose to national security. There was only one recurring gay character on television, and sixty-six percent of Americans believed that sexual relations between persons of the same sex were “always wrong.”
In the wake of Baehr v. Lewin, the LGBT rights movement began to concentrate on the legal recognition of same-sex relationships, especially marriage equality. The HIV/AIDS epidemic had painfully revealed how vulnerable same-sex relationships and chosen family structures were, because they existed without legal protections. In Baehr v. Lewin, the Hawai’i Supreme Court ruled that the failure to issue marriage licenses to same-sex couples presumptively violated the Equal Rights Amendment to the Hawai’i Constitution because the denial constituted discrimination based on gender. The Supreme Court of Hawai’i remanded the case to the trial court to determine whether the prohibition against same-sex marriage could be justified by a compelling state interest. After extensive fact-finding and hearings, the trial court ruled in 1996 that the state had failed to prove a compelling state interest.
While an appeal was pending from that ruling, the Hawai’i legislature passed the Reciprocal Beneficiaries Act in 1997 to avoid judicially mandated same-sex marriage. The legislation extended some rights that were associated with marriage to same-sex couples, as well as to certain different-sex couples. The following year, while the case was on appeal to the state supreme court, the voters amended the Hawai’i state constitution to provide that the definition of marriage could only be changed by legislative action. The Supreme Court of Hawai’i eventually affirmed the trial court decision in favor of marriage equality, but the constitutional amendment had rendered the court’s decision moot, because the court no longer had the power to alter the definition of marriage. The reaction by the Hawai’i legislature and the voters set the stage for future struggles over marriage equality in other states, as voters rushed to amend their state constitutions to prohibit same-sex marriage, and some legislatures begrudgingly created a second-class status for same-sex couples to avoid an outright grant of marriage.
The Defense of Marriage Act and Romer v. Evans
For defenders of traditional values, Baehr represented a direct threat to the moral foundations of society, and advocates mobilized on both the state and federal level. By 2006, forty-five states had laws or constitutional amendments restricting marriage to a union of one man and one woman, and a number of states had both. Many states eventually amended their state constitutions to prohibit not just same-sex marriage, but also the grant of any of the “incidents of marriage” to same-sex couples. These broader amendments were designed to prohibit not only marriage, but also any nonmarital form of relationship recognition, including civil unions, domestic partnerships, municipal registries, and even the grant of domestic-partner employee benefits to public employees.
Three years after the initial ruling in Baehr, Congress enacted the Defense of Marriage Act (DOMA) in 1996 to stem the potential tide of marriage equality and to ensure that federal benefits would be restricted to different-sex married couples. The 1993 decision from Hawai’i established that state constitutions could be interpreted to require marriage equality. Without DOMA, the federal government would have been required to recognize same-sex marriages that were valid under state law for all federal purposes. Moreover, the Full Faith and Credit Clause of the U.S. Constitution could have required states to recognize same-sex marriages performed in other jurisdictions. DOMA addressed both of these eventualities through two substantive provisions: it adopted a restrictive federal definition of marriage as a union of one man and one woman, and it authorized states to refuse to recognize out-of-state same-sex marriages.
DOMA was enacted with overwhelming bipartisan support. It was introduced and passed in the months leading up to the 1996 presidential election, and both presidential candidates supported the legislation. Republican presidential candidate Senator Bob Dole introduced DOMA in the Senate, where it passed by a vote of eighty-five to fourteen. DOMA passed the House of Representatives by a vote of 342 to 67. With veto-proof majorities in both houses of Congress, President Clinton, who was running for reelection, signed DOMA into law in September 1996. The notoriety associated with DOMA led the major opinion polls to begin to include questions on marriage equality. In 1996, only twenty-seven percent of Americans thought that same-sex marriages should be legal.
Appealing mainly to morality, history, and religion, the testimony in the Congressional Record provides a glimpse of what was considered acceptable political discourse at the time. Members of Congress invoked images of the fall of ancient Rome and discussed marriage equality in the most alarmist and disparaging terms. They warned that the “flames of hedonism” were threatening to consume the nation. The Report of the U.S. House of Representatives Judiciary Committee found that marriage in 1996 was in a precarious state—”reeling because of the effects of the sexual revolution, no-fault divorce and out-of-wedlock births.” The Report stressed the “nexus between marriage and children” and advised great caution before embarking on a “radical, untested and inherently flawed social experiment.” It explained that DOMA was necessary to further four government interests: (a) defending and nurturing the institution of traditional marriage, (b) defending traditional notions of morality, (c) protecting states’ sovereignty and democratic self-governance, and (d) preserving scarce government resources.
Senator Byrd (D-WV) used expressly religious objections to explain his support for DOMA, as he had with respect to his opposition to the Civil Rights Act of 1964. During the DOMA hearing, Senator Byrd held up his family’s King James Bible on the floor of the Senate and read from Genesis and the Gospel of St. Mark to support DOMA. After he finished reading from the Bible, the Senator warned: “Woe betide that society… that fails to honor that heritage and begins to blur that tradition which was laid down by the Creator… ” He ended his statement with the story of Belshazzar and the omen of the writing on the wall, concluding: “The time is now… Let us defend the oldest institution, the institution of marriage between male and female, as set forth in the Holy Bible. Else we, too, will be weighed in the balances and found wanting.” Senator Jesse Helms was much more succinct in his use of Biblical authority. He simply restated the old chestnut: “God created Adam and Eve—not Adam and Steve.”
Once DOMA was enacted, it took eight years before the first state-Massachusetts—mandated marriage equality, in 2003. Even when same-sex couples could legally marry under state law, DOMA ensured that they were still treated as if they were unmarried for all federal purposes. For example, a legally married same-sex couple living in Massachusetts could file their state income taxes jointly, but had to file their federal taxes as if they were unmarried. The United States General Accountability Office identified 1,138 federal statutory provisions under which marital status is a factor in determining or receiving benefits, rights, and privileges. These provisions included favorable joint tax rates, Social Security spousal benefits, and pension rights.
The same year that Congress enacted DOMA, the U.S. Supreme Court decided Romer v. Evans and declared that Amendment 2 to the Colorado state constitution, which was enacted by a citizen’s initiative, violated the Equal Protection Clause of the Fourteenth Amendment. Amendment 2 prevented the enactment of any laws or regulations that recognized sexual orientation as a protected class. Ruling that a “state cannot so deem a class of persons a stranger to its laws,” Romer signaled the end to the barrage of citizens’ initiatives that were designed to disenfranchise LGBT people from the political system by prohibiting the enactment of LGBT discrimination protections or what anti-LGBT advocates characterized as “special rights.” Although the Court rejected the notion that basic civil rights were “special rights,” this characterization continues to inform many conservative objections to identity-based politics and movements, especially LGBT rights.
Marriage and Lawrence v. Texas
A year after DOMA was enacted, states began experimenting with alternative forms of relationship recognition, such as civil unions and reciprocal beneficiaries, which granted some or all of the benefits of marriage. Hawai ‘i was the first mover in 1997 when it legislatively created the legal category of reciprocal beneficiaries. It was followed in 1999 by Vermont, which became the first state to extend the full rights and responsibilities of marriage to same-sex couples in the form of a civil union. In 2003, Massachusetts became the first state to recognize same-sex marriage when the Massachusetts Supreme Court held in Goodridge v. Department of Public Health that the Massachusetts Constitution requires equal treatment of same-sex couples with respect to marriage. Although some other states followed suit, the vast majority of states took another route, enacting laws or amending their state constitutions to prohibit same-sex marriages. The result was a confusing patchwork of state and federal laws where a same-sex couple might be legally married in their state of domicile but not in a sister state and not for any federal purpose.
The same year that the Massachusetts Supreme Court mandated marriage equality, the U.S. Supreme Court decided Lawrence v. Texas, holding that criminal sodomy statutes violated the concept of liberty guaranteed under the Fourteenth Amendment. Lawrence expressly overruled the Court’s 1986 decision in Bowers v. Hardwick. The majority recognized that criminal sodomy laws, although rarely applied, had been used to justify a host of additional legal and social disabilities. As Justice Scalia argued in his blistering dissent in Romer, if a state could still criminalize the behavior that defined the class, it was logical that the state could also disfavor the class in other instances. At the time of the Lawrence decision, consensual, non-commercial sodomy was still a crime in thirteen states.
Despite the favorable court rulings in 2003, opinion polls showed that only thirty-seven percent of Americans believed that same-sex marriage should be legal, and a majority of Americans still considered homosexuality to be “always wrong.” Although it would take ten more years before the Supreme Court invalidated the restrictive federal definition of marriage prescribed by DOMA, the years following Lawrence saw many positive advancements, including the enactment of state-level anti-discrimination protections, the repeal of “Don’t Ask, Don’t Tell,” the enactment of both federal and state-level hate crimes legislation, and the addition of anti-bullying and safe schools initiatives. Transgender issues increased in visibility, and a growing number of states included “gender identity” as a protected class. LGBT characters became ubiquitous on television, as well as in movies. Openly LGBT politicians were no longer the exception, and a majority of Americans reported they would vote for an openly gay presidential candidate.
Marriage Equality—U.S. v. Windsor and Obergefell v. Hodges
By the time the U.S. Supreme Court decided U.S. v. Windsor in 2013 and declared the definitional portion of DOMA unconstitutional, twelve states recognized same-sex marriage, fifty-three percent of Americans were in favor of marriage equality, and pollsters had stopped asking whether homosexuality was “always wrong.” The five-to-four decision in Windsor invalidated the restrictive federal definition of marriage as a union between one man and one woman. Justice Kennedy authored the majority opinion and spoke in sweeping terms regarding the disabilities that DOMA imposed on married same-sex couples, noting that the federal definition of marriage “demean[ed] the couple, whose moral and sexual choices the Constitution protects.”
Two years later, the U.S. Supreme Court recognized in Obergefell v. Hodges that same-sex couples had a fundamental right to marry, guaranteed under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In a landmark five-to-four decision, the Court invalidated state laws prohibiting same-sex marriage and further held that no state had the right to refuse to recognize a same-sex marriage performed in another state. As a result of the decision, marriage equality is now the law in the United States. Public opinion polls show that sixty-seven percent of Americans approve of same-sex marriage.
By the time Obergefell affirmed a fundamental right to same-sex marriage in 2015, a broad religious marriage exemption had been introduced in Congress, and similar bills were pending in, or had been enacted by, nearly a dozen state legislatures. As explained in the next section, religious exemptions to perform marriage services—and religious exemptions more generally—are designed to protect individuals and entities that discriminate against LGBT people, provided the discrimination is based on religious or moral grounds. In Romer v. Evans, the Court labeled these sorts of objections to LGBT people as animus, but they were on clear display during the Congressional hearings on DOMA. They also continue to serve as the basis for contemporary anti-LGBT initiatives, although they have been tempered and have lost much of the brimstone. Broad exemptions allow individuals who harbor anti-LGBT beliefs to engage in discrimination, notwithstanding legal protections for LGBT people. Accordingly, these sorts of exemptions have the potential to severely blunt much of the progress made with respect to LGBT rights.
Religion and Morality
Since marriage equality, there has been a resurgence of policy initiatives based on religious objections to LGBT people and identities. Even though religious objections have historically served as the basis for anti-LGBT views, express appeals to religion, such as those expressed during the DOMA hearings, were largely absent from the marriage equality debates of the 2000s. Instead, anti-LGBT views were couched in terms of traditional morality and disdain for “special rights.” Writing for the majority in Lawrence v. Texas in 2003, Justice Kennedy referenced the history of religious objections, noting that not that long ago there was broad public consensus against homosexuality “shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family.” Lawrence made it clear that even “profound and deep convictions accepted as ethical and moral principles” could not justify enforcing “these views on the whole society through operation of the criminal law.” Romer v. Evans also rejected the claim that Colorado’s Amendment 2 was designed to protect the “personal and religious objections” of landlords and employers, finding instead that Amendment 2 was motivated by animus.
Despite these clear denunciations by the Court, marriage equality has spurred a new wave of anti-LGBT laws and policies. This section reviews the new generation of anti-LGBT initiatives by dividing them into two basic camps: (1) laws and policies that impose disabilities on LGBT people and (2) laws and policies that empower religious and moral objectors to discriminate against LGBT people (i.e., religious exemptions). Although these laws vary in their approach, they all seek to eradicate LGBT identities, whether from public life entirely or from more targeted venues, such as schools, places of public accommodation, or the military. They use the signature strategies of the politics of eradication—conversion, containment, and redefinition. There are initiatives that seek to ensure parents have access to conversion therapy for their children. Other initiatives restrict the access of LGBT people to certain spaces. And some initiatives even seek to define LGBT people out of existence.
For reasons discussed below involving ideological polarization, these laws and policies tend to flourish in the so-called “Red States” and should be expected under a Republican administration. These appeals to religion and morality continue to proliferate even though an increasing number of religious denominations have embraced LGBT people, and even though there is no longer a blanket religious condemnation of LGBT people. Accordingly, this new generation of anti-LGBT laws raises Establishment Clause questions, as well as questions regarding the role of pluralism in an increasingly secular society, because these laws seek to privilege specific religious beliefs associated with certain denominations or faith traditions. Ideological Polarization
The current popularity of religious and moral justifications for anti-LGBT initiatives may seem hard to reconcile, given the advancements in LGBT rights and visibility and the shift in public opinion, as described in the last section. By the time the Court decided Obergefell in 2015, a majority of the American public approved of same-sex marriage. This approval level is a far cry from the mere twenty percent of the population who approved of interracial marriage after Loving v. Virginia. Moreover, the majority of the mainline Protestant denominations, as well as most branches of Judaism and the Unitarian Universalists, have all embraced same-sex marriage and LGBT individuals. Prohibitions against marriage equality remain in the teachings of the Catholic Church and among Evangelical Protestants, but such views no longer enjoy universal acceptance across American faiths.
Favorable opinion polls citing high levels of approval for LGBT rights hide hard truths about increased polarization over social issues. Although it is true that sixty-seven percent of the general population support same-sex marriage, that number drops to only forty percent among Republicans, and thirty-four percent among white Evangelicals. In 2018, nearly one-in-four Americans still believed that homosexuality should be criminalized, and close to one-in-three believed that same-sex relationships were immoral. A full one-half of those surveyed believed that homosexuality was a choice. In terms of gender identity, over one-half of Americans believed that a person’s sex was determined at birth. But when these opinions are viewed along party lines, the numbers change drastically, and the difference is most stark with respect to transgender issues. For example, in 2017, fifty-four percent of Americans believed that a person’s sex was determined at birth, but that number goes up to eighty percent among Republicans. Accordingly, it makes sense that when Republicans are in power, they seek to enact anti-LGBT policy initiatives.
At the state level, current anti-LGBT laws and religious exemptions are largely, but not exclusively, contained to the so-called “red states.” Currently, only twenty-one states and the District of Columbia have anti-discrimination protections for LGBT people.” There are no blanket protections at the federal level. Unsurprisingly, the states without anti-discrimination protections also tend to be red states. What this means, however, is that many of the anti-LGBT laws introduced in these states are not actually necessary, because there are no anti-discrimination protections for LGBT people. Accordingly, there is no need to exempt individuals who object to LGBT people, because it is currently legal to discriminate based on sexual orientation and gender identity in these states. The introduction of anti-LGBT laws and religious exemptions in these states is unnecessary and, thus, primarily serves a signaling function expressing an official rejection of LGBT identities and rights.
At the federal level, Republican control opens the door to anti-LGBT laws and policies, as has been the case in the transition from the Obama administration to the Trump administration. Under the Obama administration, there were tremendous policy gains within the executive branch to advance LGBT rights. However, because these gains were not statutory, and the majority were not even regulatory, it has been relatively easy for the Trump administration to reverse many of the Obama-era advancements. For example, in 2016, the Obama administration directed public schools to allow students to use bathrooms that align with their gender identity, even if that conflicted with the gender on their birth certificates. The policy was announced by the Department of Education in the form of a “Dear Colleague Letter,” which is a common form of sub-regulatory guidance used by the Department. Dear Colleague Letters explain how the Department interprets the relevant laws and regulations that apply to educational contexts. In this case, the interpretation announced in the letter was based on a determination that barring transgender students from public-school bathrooms which matched their gender identities was a form of sex discrimination prohibited under Title IX. At the time, the issue of access to bathrooms and locker rooms for transgender students was the subject of several ongoing and high-profile court cases, most notably the case brought by Gavin Grimm. In February 2017, a little more than a month into the Trump administration, the Department of Education rescinded the guidance by issuing a new Dear Colleague Letter, stating that the first one had been based on insufficient legal analysis.
Anti-LGBT Laws and Policies
The first category of laws and policies are initiatives that place legal disabilities directly on LGBT people. Today, these measures generally fall into three categories: anti-transgender laws that reject the concept of gender identity and enforce the belief that one’s sex is determined at birth, anti-marriage laws that deny the validity of same-sex marriage, and anti-protection laws that limit the ability of municipalities to pass laws providing protections based on sexual orientation and gender identity. Although some lawmakers are openly hostile to the LGBT community and make openly anti-gay statements, the full-throated Biblical condemnation that accompanied the enactment of DOMA is much less common today. This is not to say that all public anti-LGBT statements are more subdued in the present. In 2019, a West Virginia state legislator who championed anti-LGBT legislation was asked in a televised interview how he would react if his children, a boy and a girl, told him they were gay. With a smile, he responded that he would instruct each child on gender-specific behavior and then “see if they could swim.” The legislator was denounced by colleagues on both sides of the aisle because of the implication that the legislator would drown his own children if they identified as LGBT.
By far, the majority of new anti-LGBT legislation and policy is directed at transgender people and is designed to mandate that sex is determined at birth and inalterable. The goal of these measures is the eradication of transgender identity, plain and simple. They advance the view that transgender identity is somehow delusional and that the state and third parties should not be forced to respect such a delusion. The strong adherence to sex assigned at birth is contrary to the prevailing opinions of those in the scientific and medical communities, and it often stems from strong religious beliefs about the nature of men and women and appropriate gender roles. Recently, there have been a number of cases where hospitals affiliated with the Catholic Church have denied appropriate medical care to transgender patients. Catholic hospitals must comply with the Ethical and Religious Directives written by the U.S. Conference of Catholic Bishops. The denial of trans-competent health care is especially problematic because of the large number of religiously affiliated hospitals in the United States. One out of six hospitals in the U.S. is owned by or affiliated with the Catholic Church. Moreover, in forty-six United States areas, Catholic hospitals are the “sole community hospital,” which means there are no other hospitals within a thirty-five mile radius.
At the federal level, the Trump administration is considering a global policy change that would introduce a federal definition of gender, which provides that a person’s sex is determined at birth. In this way, the initiative is similar to the legislative definition of marriage that was introduced at the federal level by DOMA. A blanket policy would also avoid the piecemeal reversal of the Obama-era administrative gains. One of the most significant gains that President Trump reversed is the policy that allowed transgender people to serve openly in the military. Under the new Trump policy, transgender individuals may continue to serve, but they must do so in the gender they were assigned at birth. Moreover, they will need a doctor’s certificate stating that they have been stable in their sex assigned at birth for at least thirty-six months and have not transitioned.
Like “Don’t Ask, Don’t Tell” before it, the transgender military policy attempts to make a specious distinction between status and conduct. Under “Don’t Ask, Don’t Tell,” a gay servicemember was free to serve, provided they did not engage in any prohibited homosexual conduct, including the simple declaration: “I’m gay.” Similar arguments are used in other contexts to justify discrimination. For example, a person who wishes to exclude LGBT people may claim that they have no quarrel with LGBT people and only wish them goodwill, but they find the acts associated with LGBT people objectionable. Thus, a photographer would base refusing to photograph a same-sex wedding on an objection to marriage equality rather than on a general objection to gay men and lesbians. LGBT advocates also tried to walk the status-versus-conduct line after Bowers v. Hardwick. In both cases, the distinction fails, because the objectionable acts or conduct are constitutive of the identity.
At the state level, these anti-transgender measures have taken many forms. The most well-known are the “bathroom bills” which bar access to—or even criminalize—the use of gender-appropriate facilities by transgender people. Some states are attempting to amend their criminal indecent exposure laws to include transgender people who expose their genitalia or buttocks in a bathroom that is not consistent with the sex they were assigned at birth. These laws specifically provide mat a diagnosis of gender dysphoria is not a defense to a criminal charge. The stated rationale for bathroom bills is they are necessary to ensure safety of women because of the fear that men will pretend to be women to invade sex-segregated spaces. Of course, the real danger and mreat of violence exists when transgender people are forced to use bathrooms that are not congruent with their gender identity.
Other laws have been introduced to deny transgender students the ability to participate fully in sports or to silence any mention of transgender identity in the course of instruction at public schools. A number of states have introduced laws authorizing health care discrimination against transgender people. Some states have prohibited funds from being used for transgender medical care. A pending bill in Illinois would prohibit a physician from providing certain care to transgender individuals under the age of eighteen. Some states have taken steps to make it more difficult for transgender people to get official identification documents with their correct name and gender. These laws deny the existence of transgender identity and block access to trans-competent medical care. Broader religious exemptions, described below, would allow medical-care professionals to refuse to treat transgender people entirely, as well as refuse to treat individuals based on sexual orientation.
Religious Exemptions
There is no question that religious beliefs which express animus towards LGBT individuals and which deny their right to exist enjoy absolute protection under the Free Exercise Clause. However, when religious beliefs translate into public action, they traditionally step over the line and become subject to state regulation. In Employment Division v. Smith, the U.S. Supreme Court held that the First Amendment does not require religious or moral exemptions to laws of general applicability that are not otherwise targeted at religion. Accordingly, a county clerk who refuses to issue a marriage license to a same-sex couple could face internal discipline or criminal charges for failure to discharge their official duties or a federal lawsuit for deprivation of civil rights. Religious exemptions are designed to provide greater protection than demanded by the First Amendment and would protect the clerk from any adverse actions, provided the refusal was based on their religious belief that marriage is between one man and one woman.
Three years after Smith was decided, Congress enacted the Religious Freedom Restoration Act (RFRA) that statutorily overruled Smith by codifying pre-Smith case law and allowing individuals to challenge federal action that “substantially burden[s] free exercise.” The government then has an opportunity to defend the practice that allegedly burdens free exercise, by showing that it serves a compelling state interest and is the least restrictive alternative. Many states also have RFRAs in place, some of which are much more expansive than the federal version. Targeted religious exemptions, however, are very different from a RFRA claim, which requires balancing the interests involved. Instead, religious exemptions provide a blanket exception from a law of general applicability and, in the context of LGBT rights, insulate religious objectors from the increased legal and social acceptance of LGBT individuals. Although religious exemptions have been used in the healthcare field for many years, they only came to prominence in the LGBT area after marriage equality. They uniformly cover both religious and moral beliefs because of the Establishment concerns discussed below. These measures represent a departure not just from First Amendment jurisprudence, but also from the tradition of enacting robust civil rights protections without individual religious carve-outs. The absolute exemption provided under these laws extends state protection beyond questions of individual belief and conscience and instead covers public acts that in other contexts would clearly be recognized as discriminatory regardless of their religious motivation. This section covers both RFRAs and the more targeted religious exemptions.
(1) Religious Freedom Reformation Acts
Under RFRA, a governmental action that places a substantial burden on an individual’s exercise of religion is prohibited unless the government can show that the action is the least restrictive means of furthering a compelling state interest. RFRA originally applied to both state and federal governmental action, but it was declared unconstitutional as applied to the states in the 1997 U.S. Supreme Court decision of City of Boerne v. Flores. Since that time, twenty-one states have passed their own “mini-RFRAs.” In 2006, the Court affirmed that RFRA continues to apply to federal action in Gonzalez v. O Centre Espirita Beneficente Uniao do Vegetal. The Court revisited what constitutes a “substantial burden” for purposes of RFRA in Burwell v. Hobby Lobby in 2014 and affirmed that RFRA protection could extend to for-profit corporations.
After Hobby Lobby, many states introduced legislation to broaden their existing state RFRA or to enact a state-level RFRA that would provide as much protection, or more, than the federal statute. Proposals were introduced to remove the requirement that the burden on religious exercise must be “substantial,” providing instead that any burden on religious exercise will trigger strict scrutiny. Other bills specifically included for-profit and nonprofit organizations. Much of the state-level RFRA activity occurred while Obergefell was pending before the Court, leading many commentators to suggest that it was motivated by the increasing awareness that marriage equality was inevitable.
Shortly before the Court issued its decision in Obergefell, Indiana enacted RFRA legislation amid considerable controversy regarding the impact such laws could have on LGBT individuals. At the same time, an expanded RFRA was also pending in Arkansas. The original version of the Arkansas bill would have required the state to show not only that the offending action furthered a compelling state interest, but also that the action was “essential” to achieving a compelling state interest. Walmart and other corporations doing business in Arkansas came out against the bill. In response, the Governor of Arkansas asked the legislature to revise the bill to mirror the federal RFRA. The Governor then signed the revised bill into law in April 2015.
In both Indiana and Arkansas, the controversy surrounding the state RFRAs centered on protecting LGBT individuals from discrimination. However, neither piece of legislation specifically mentioned LGBT individuals or marriage. By design, RFRAs are broad statutes that apply to all religious exercise. They are indifferent as to whether the exercise is by a member of the Native American Church or a mainline Protestant denomination. They protect the free exercise of religious belief against substantial government interference, but also balance free exercise interests against the importance of the offending governmental action. As discussed in greater detail below, religious anti-LGBT exemptions have none of these qualities. They target a particular religious belief, namely the belief that marriage is a union between one man and one woman or that transgender people should not exist. They then conclusively presume that this belief takes priority over any government law or action advancing or protecting same-sex marriage or other LGBT rights, without any need to establish a substantial burden or opportunity to justify that burden by showing a compelling state interest. There is no required balancing of the interests involved.
(2) First Amendment Defense Acts
The First Amendment Defense Act (FADA) was introduced in both the U.S. House and Senate ten days before the U.S. Supreme Court announced its decision in Obergefell? It is a federal religious marriage exemption that prohibits the federal government from taking any discriminatory action against a person on the basis, wholly or partially, that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.
“Discriminatory action” is defined broadly and covers the areas of taxation, federal contracts, licensing and accreditation, employment, and federal benefits. Consistent with the Court’s ruling in Hobby Lobby, FADA defines “person” to include both for-profit and nonprofit entities. It also covers persons “regardless of religious affiliation or lack thereof.” Although FADA holds religious objectors harmless from a potentially wide range of federal sanctions, it has been most closely associated with the concern that religious educational institutions could lose their federal tax exemption if they discriminate against same-sex couples or LGBT individuals more generally. The basis for this concern is the 1983 U.S. Supreme Court decision, Bob Jones University v. United States, where the Court ruled that the IRS could revoke the university’s federal tax exemption on account of its policy against interracial dating. The Court rejected a First Amendment claim that the IRS action violated the Free Exercise clause.
FADA, like the other targeted religious exemptions discussed below, protects objections based on religious or moral convictions. In free exercise cases, the Court adds the term “moral conviction” in order to avoid establishing a religion, thereby violating the First Amendment in an attempt to enforce First Amendment freedoms. Courts have resisted defining what constitutes a religion or evaluating individual religious beliefs. They will only inquire as to whether the religious belief is sincerely held, not whether it is true or false. Religion is defined, in the most abstract terms, as a system of belief that deals with ultimate concerns, such as fundamental questions regarding human existence and what makes life worth living. Take, for example, an employee of the U.S. Social Security Administration (SSA) who refuses to process claims from surviving same-sex spouses. In determining whether the employee was protected by FADA, courts would not be permitted to inquire as to whether the belief was central to the employee’s religion or whether it was a valid interpretation of their particular creed. It could not judge the plausibility of the religious claim. The belief could represent an entirely idiosyncratic interpretation that was not supported by the doctrine of their denomination or by any denomination. The belief also could be based on a deeply held secular moral code, which is why many of the religious marriage exemptions expressly include “moral conviction” as a protected category in addition to religious belief.
The addition of “moral conviction” to religious exemptions signals an effort to protect everyone who is opposed to LGBT rights. Moral disapproval has long served as the basis of the legal disabilities imposed on LGBT individuals. If the religious marriage exemptions safeguard individuals with moral objections, as well as religious objections, then it is difficult to see who would not be protected. As a result, the religious marriage exemptions have the potential to be applied very broadly and could serve as an attractive pretext for anti-LGBT discrimination and bigotry. Returning to the example of the employee at SSA, assume that instead of harboring a religiously informed objection, the employee is an unrepentant bigot with a strong hatred for LGBT individuals. Their refusal to process claims by surviving same-sex spouses would be based on their strong and sincere “moral conviction” that marriage should be between one man and one woman. Under FADA, there would be no meaningful distinction between the bigoted employee and the devout employee. Of course, there is also no difference between the two from the perspective of the surviving same-sex spouses, whose claims languish in the bureaucracy. The actions of the employees have the same effect, regardless of their motivation. FADA would trump internal civil service rules and federal civil rights protections, meaning that the employee could not be held accountable for their refusal to perform their assigned duties.
Since its introduction, FADA has been endorsed by numerous conservative organizations, including the Catholic Council on Bishops, the Family Research Council, and the Heritage Foundation. It has also served as a model for action on the state level, where the FADA model has been expanded to include anti-transgender religious or moral beliefs that “male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics by time of birth.” They also include protection for government employees, such as county clerks who object to issuing marriage licenses to same-sex couples. For example, in North Carolina, a magistrate or recorder of deeds who refuses to issue or record a marriage license could be charged with “willfully failing to discharge duties,” which is a Class 1 misdemeanor. In 2015, the North Carolina legislature amended the law, over the governor’s veto, to provide a recusal mechanism for magistrates and recorders of deeds who refused to issue or record a marriage license “based upon any sincerely held religious objection.”
(3) Targeted Religious Exemptions
Targeted religious exemptions differ from FADAs in their scope. Whereas a FADA can act as an omnibus religious exemption provision, many states have pursued very specific exemptions around certain issues and in particular contexts. These specific religious exemptions cover religious and moral objections in a wide range of situations where LGBT individuals are trying to navigate through the world. States have adopted religious exemption laws that allow religious objectors to refuse to provide medical care and to refuse to follow professional standards. For example, a bill pending in Texas allows mental-health professionals, including guidance counselors and substance-abuse counselors, to refuse to provide services that would violate a “sincerely held religious belief.” A similar Texas bill covers health care facilities but is broadened to include moral convictions. There are also religious exemptions which allow adoption and foster-care agencies to refuse to provide services that violate their religious convictions. Other bills require public universities to allow discrimination by student organizations if this discrimination is based on religious or moral beliefs.
The most common targeted religious exemption is for objections to marriage equality. The Obergefell decision prompted outrage on the part of opponents to marriage equality. Some of the harshest and most immediate criticisms were directed toward the U.S. Supreme Court and its perceived activist stance. Many of the candidates for the Republican presidential nomination advocated creative ways to circumvent or block the Court’s decision. In addition to the criticism of the Court, there was a strong call to respect religious freedom. For example, President Obama’s statement on the Obergefell decision included the following caution:
I know that Americans of goodwill continue to hold a wide range of views on this issue. Opposition in some cases has been based on sincere and deeply held beliefs. All of us who welcome today’s news should be mindful of that fact; recognize different viewpoints; revere our deep commitment to religious freedom.
Concerns about the rights of religious objectors were expressed in both the majority and dissenting opinions in Obergefell. Toward the end of his majority opinion, Justice Kennedy acknowledged that some religions and individuals hold a “sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” He affirmed that the First Amendment protects “religious organizations and persons… as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” In his dissent, Chief Justice Roberts charged that Justice Kennedy’s assurances were lacking. He noted that although “[t]he majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage… [t]he First Amendment guarantees… the freedom to ‘exercise’ religion.” Justice Thomas echoed this concern in his dissent when he warned that the Court’s ruling could have “potentially ruinous consequences for religious liberty.” Justice Alito’s dissent stressed how quickly the tables can turn and a newly recognized right can be used to “vilify Americans who are unwilling to assent to the new orthodoxy.” While making the case for the protection of “rights of conscience,” Justice Alito concedes “the harsh treatment of gays and lesbians in the past,” but warns that “the Nation will experience bitter and lasting wounds” if Americans with “traditional ideas” are marginalized.
The more targeted the religious exemptions, the more likely that they will violate the Establishment Clause. The religious marriage exemptions provide special treatment and absolution from the law for a particular religious viewpoint, namely that marriage must be between one man and one woman. They are similar to the spiritual healing exemption to the Delaware abuse and neglect law, considered by the Delaware Supreme Court in Newmark v. Williams.[TM] The court noted that the exception was “enacted as a result of a Christian Science lobbying effort” and “mirrors the Christian Science belief.” Although the court did not reach the question of the constitutionality of the spiritual healing exemption, it concluded that “any statute passed as the result of the efforts of one religious group to benefit that one particular group… bears a strong presumption against its validity as a direct violation of the Establishment Clause.”
Conclusion
The longevity of the politics of eradication may seem surprising, given the objective gains that LGBT people have made in terms of legal rights, political empowerment, and social acceptance described in this Article. However, the fundamental belief that LGBT identities are not legitimate remains a stubborn article of faith among many Americans. This belief continues to inform cross-institutional efforts to devise cures, containment strategies, and legal definitions that challenge the very existence of LGBT people. It fuels the present-day practice of conversion therapy and efforts to define gender identity out of existence. It is expressed in the Trump administration’s virulently anti-LGBT policies, as well as the recent deluge of anti-LGBT initiatives at the state level. And it serves as the basis for religious and moral exemptions for individuals (including corporations) who wish to discriminate openly against LGBT people without legal repercussions.
The politics of eradication presents an especially nihilistic form of subordination because it is based on the conviction that LGBT people should not, or do not, really exist. Accordingly, it is not focused on a debate over whether or how to address existing disparities or whether or how to level the playing field for LGBT people. Under the politics of eradication, any government recognition of LGBT people or their families risks legitimizing and acknowledging the reality of LGBT lives and identities. Take, for example, Craig Northcott, the district attorney of Coffee County, Tennessee, who bragged that he refused to prosecute same-sex partners for domestic violence because “[t]here’s no marriage to protect with homosexual relationships, so I don’t prosecute them as domestic.” Or consider the social worker at a Miami hospital who told Janice Langbehn that Janice would not be permitted to see her domestic partner, who had just suffered what proved to be a fatal aneurysm, because they were in “an anti-gay city and state.”
To counter the politics of eradication, LGBT people must continue to challenge the belief that LGBT people and identities are not valid and must continue to assert the basic humanity of LGBT people. The fields of science and medicine now affirm LGBT identities, and, in many instances, the law has worked to advance the dignity of LGBT people. However, there remains much work to be done, particularly in the context of religion and morality, where specific beliefs and teachings reject LGBT identities and, at times, demonize LGBT people. These beliefs spur the demand for anti-LGBT legal initiatives and expanded religious exemptions. Although the harm wrought by anti-LGBT initiatives may be clear, it is important not to minimize the danger of expanded religious exemptions to LGBT people and their families. Religious exemptions elevate bigoted anti-LGBT beliefs and teachings that are framed as sincerely held religious beliefs or moral convictions. They not only allow such beliefs to go unchallenged, they also entitle them to special government protections.
On this point, it is useful to borrow a page from history because the United States has a strong record of refusing to accept bigotry and hatred as articles of faith. People sometimes forget that when the Civil Rights Act of 1964 was enacted, a number of mainstream denominations supported segregation as Biblically ordained. Notwithstanding this support, Congress repeatedly rejected calls for broad religious exemptions. In 1968, the U.S. Supreme Court rejected a claim from a restaurant owner who argued that the public accommodation provisions of Title II violated “his sacred religious beliefs” regarding the separation of the races as “patently frivolous.” Arguably, the future of LGBT rights will remain uncertain until attempts to label anti-LGBT bigotry as sincerely held religious beliefs are dismissed out of hand as “patently frivolous.” Until then, religious exemptions have the potential to make marriage equality a hallow victory and further erode the rights of transgender people. As the saying goes, “LGBT rights are human rights.”