"This is a pivotal moment in the movement for LGBT equality," said Janson Wu, executive director of Gay & Lesbian Advocates & Defenders, opening a panel on "The Religious 'Right to Discriminate'" at the Law School on October 8. "To be having a discussion like this is a sign of how far we've come. You have to be winning before people can use these arguments about religious rights as a defense for discrimination."
All three panelists-Wu, Associate Clinical Professor Susan Hazeldean, and Visiting Professor Nelson Tebbe-talked about the shift in strategy by the religious right, coming in the wake of its 5-4 victory in Burwell v. Hobby Lobby, which allowed a closely-held private corporation to claim a religious exemption from providing contraception, and its 5-4 defeat in Obergefell v. Hodges, which granted same-sex couples the right to marry in all fifty states. Other cases have followed, with businesses claiming religious objections to providing services for same-sex weddings, and with a series of states considering legislation to protect those claims by amplifying the 1993 federal Religious Freedom Restoration Act (RFRA).
"In the past, claims for religious exemption were generally based on individual rights and practice," said Hazeldean, who directs the Law School's LGBT clinic, talking about the original RFRA, which included protection for the ceremonial use of peyote. "Now, the claims for exemption are less about individual practice and more about avoiding complicity in behavior the religious right perceives as sinful."
Some earlier exemptions, said Tebbe, have been uncontroversial-for example, the right of religious organizations to employ clergy according to the tenets of their faith, even if that means excluding women. But some current cases are more controversial, including one of Wu's cases, where a Catholic prep school rescinded its job offer to a food service worker who'd listed his husband as an emergency contact. "The legal landscape is complicated," said Tebbe, whose Religious Freedom in an Egalitarian Age will be published by Harvard University Press in 2016. "The question is not whether there will be religion exemptions from antidiscrimination laws, but what those exemptions will be."
In the upcoming year, panelists will watch the progress of the Equality Act, which would add "sexual orientation" and "gender identity" to the list of prohibited grounds for discrimination in civil rights laws. But even if it's passed, say organizers, the debate will continue. "At Lambda Law, we're here to speak on LGBT issues and to advocate for the LGBT community, both at the Law School and across the university," said Julian Veintimilla '17, co-president of Lambda Law, which co-sponsored the event with the American Constitution Society. "People on both side of these issues are very passionate, bringing up law and legal precedent to make their point. There's a lot at stake, and it's very important for us to have this discussion."