After Obergefell: The Conflict Between Religious Freedom and LGBTQ Rights in the United States

The purpose of this paper is to discuss the discord between proponents of equal rights for members of the LGBTQ community and adherents of the right to freely exercise religion. It focuses on the battles over state and federal policies that have the purpose and effect of hindering equality of rights under the guise of promoting religious freedom.

As became evident after the Supreme Court’s historic Obergefell ruling in June 2015, although most Americans appeared to accede to a new cultural and social norm, a significant number of marriage equality opponents refused to accept the legitimacy of the Court’s decision and allow same-sex couples to enjoy the rights and responsibilities of marriage and family life. In the name of religious liberty, they enact laws and expound principles that mask discriminatory motives and permit them to place roadblocks in the lives of gay, lesbian, and transgender individuals.

Passage of such laws gained momentum after Obergefell, not only as a means to demonstrate opposition to same-sex marriage, but also to serve the broader purpose of justifying other forms of discrimination against the LGBTQ community. At a minimum, they allow government officials to abdicate their duties and refuse to perform marriages for same-sex couples. However, their effect is more widespread for they also permit government bodies more generally, as well as private individuals, business entities, and charitable organizations, to rationalize discrimination against LGBTQ people simply by linking their actions to their religious principles.  Moreover, faith-based institutions, even if recipients of government funding, rely on such principles to deny gays, lesbians, and transgender individuals access to homeless or domestic violence shelters, foster parenting and adoptive services, and food pantries by claiming their motivation stems from their religious beliefs.

In validating their discriminatory acts against members of the LGBTQ community, proponents cite their First Amendment right to the free exercise of religion as well as state and federal versions of the Religious Freedom Restoration Act (RFRA). Seeking to legalize acts of public and private discrimination, such individuals interpose their religious beliefs as defenses to claims of discrimination, often leading to condemnation from the business community, civil rights groups, and national opinion leaders.  The nature of this deep-seated conflict reveals the cultural and social schisms of the “After Marriage” era in the United States and underscores that the struggle for LGBTQ rights transcends marriage equality and is far from over despite the successful conclusion of the battle over same-sex marriage.

Although almost half the states forbid discrimination on the basis of gender identity and sexual orientation, religious liberty proponents argue that their adherence to religious principles overrides such laws. In the private sector, the media has highlighted the bakers and photographers who refuse to participate in same-sex marriage ceremonies because of their religious faith. However, often hidden from view, religious liberty laws and policies also provide a façade for discrimination by public and private actors in housing, adoption, employment, and public accommodations. Even faith-based universities and colleges point to their religious heritage to justify discriminatory acts against LGBTQ students, staff, and faculty.

Spurred by the opposition to same-sex marriage, and equal rights more generally for the LGBTQ community, these developments show that the attainment of marriage equality, while a significant victory for the LGBTQ community, has mobilized the opposition to take forceful action.  Because the religious liberty movement plays a crucial role in the “After-Marriage” era in the United States, this paper merits inclusion in this conference.


Part of panel Religion, Conflict, and Same-Sex Marriage
October 1, 2016, 14:30–16:15