Religious Exemptions vs. Our Civil Rights
Some will argue “why does it matter if a bigot doesn’t want to serve LGBTQ people, you probably wouldn’t want their services anyway? You could end up with the caterer spitting in every third drink.” The problem with this argument is that a religious exemption to public accommodations means a religious exemption to every other facet of civil rights law. This includes housing, credit, employment, education, athletics, public services, etc.
Thus, the Masterpiece Cakeshop, or the RFRA test that will inevitably follow (see below), will probably form the basis for effectively nullifying much of the Civil Rights Act of 1964 and non-discrimination laws as they pertain to LGBTQ people. There is very little belief in the legal community that LGBTQ legal protections will survive a RFRA challenge in a post-Kennedy court. In fact, there is already impact litigation wending its way through the system right now designed.
In the 2016 case of Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., a district judge in the 6th Circuit decided that despite transgender people being protected by Title VII of the 1964 Civil Rights Act under the definition of sex discrimination (based on previous 6th Circuit case law), RFRA grants employers a right to discriminate on the basis of sex. This broad interpretation of RFRA by the district court relied on Hobby Lobby and Little Sisters.
An adverse SCOTUS ruling on this case would also effectively overturn the 7th Circuit’s ruling that Title VII also protects people based on sexual orientation. This would cut off the most promising avenue for protecting LGB people at a national level.
Going one step further, the conservative long term goal is to make it difficult or impossible for employers to enforce their own non-discrimination policies because they will be legally required to accommodate the religious beliefs of employees who wish to discriminate.
The odds of these outcomes coming to pass appear very high, because while it will take a number of steps to get there, at each step the adverse outcome appears nearly inevitable. The Trump Administration is likely to replace between one and three more justices during the first four years of his term. Given that the conservative organizations spoon feeding Trump nominees, like the Heritage Foundation and the Alliance Defending Freedom, know exactly what they’re doing and how to get there, replacements for Kennedy, Ginsburg, and Breyer will almost certainly be in ideological lockstep with Gorsuch, Alito, and Thomas.
Favorable rulings now offer little defense in the long run; these conservative justices have made it clear they will use extremely narrow and contorted readings of prior decisions to side-step stare decisis (the principle of honoring precedents). They will effectively get as many bites at the apple as they need to get the outcome they want. Afterwards, the precedents they set will last at least 20 years if Bowers v. Hardwick is any indication, and even longer if Trump gets a 2nd or 3rd nominee to the court. Remember, it took 75 years to overturn Plessy v. Ferguson.
The No-Win Scenario
There’s almost nothing that progressives can do to avoid this legal outcome. They cannot block Trump appointments to the Supreme Court in his first term, since Republicans in the Senate invoked the “nuclear option” with Gorsuch, it’s basically mathematically impossible for them to take back the Senate in 2018. There is no legal argument they can offer that will sway ideological stalwarts. Somehow, they have to convince Kennedy, Ginsburg, and Breyer all not to retire (or die) for the next four years. Given Kennedy’s recent announcements, this appears to be a wish in vain. Nor is there any pro-LGBTQ impact litigation likely to come up in the next SCOTUS term that would prevent these outcomes.
Democrats and LGBTQ organizations could also push to have RFRA amended to prevent these legal outcomes. However, it would take 60 votes in the Senate, and the idea that Republicans and social conservatives would forfeit their ultimate victory over the LGBTQ civil rights movement is laughable on its face.
Some legal analysts I spoke with stated in order for this to occur, social conservatives that will have to unlock the right legal doors in the right order, which they believe may not be easy to do. However, it is a near certainty that opponents know exactly what doors to open and in what order, and will do everything within their considerable power to maximize their odds of doing so within a judiciary friendly to their aims.
The result is that the LGBTQ movement and its goals, as we know it, are probably doomed. Marriage equality will be hollowed out, wherein LGBTQ people get a piece of paper that confers little if any legal rights in most states, and possibly at the federal level as long as conservatives are in power. Nearly every law and policy in the US protecting LGBTQ people will have an enormous exemption carved out for the people who wanted to discriminate against LGBTQ people in the first place.
At the federal level, it makes the equality act a moot point, since a religious exemption would be carved into it by SCOTUS decisions regardless of the language in the actual law. At a local level, schools will be forced to accommodate the religious beliefs of those who want to discriminate against LGBTQ youth. Enforcing non-discrimination policies within state and federal government will be next to impossible, for the same reasons.
Beyond that, legal protections for women based on the Civil Rights Act are likely to go away as well, so long as the employer claims a sincerely held religious belief. Further, it begs the question if religious beliefs allow individuals and corporations to ignore the Civil Rights Act as it applies to women, will that also overturn Newman v. Piggie Park Enterprises Inc., wherein the Supreme Court ruled that religious beliefs cannot be used to discriminate on the basis of race?
In short, we are likely on a course for the major policy, legislative, and legal priorities of every LGBTQ rights group in the US to become impossible in the next five years, and to give up most of the institutional progress of the last 30 years. There is almost nothing LGBTQ organizations can do to stop this, other than to try to keep Justices Kennedy, Ginsburg, and Breyer on the bench until 2021. Given their ages, and the rumors that Kennedy is considering leaving soon, this seems highly improbable.
It also begs the question; if LGBTQ civil rights organizations cannot achieve any meaningful legal or legislative goals for at least a generation, what is there left? Spend millions trying to convince the religious people that wish to discriminate not to? Because LGBTQ people all have intrinsic worth as human beings? This seems foolhardy, given what the election has revealed about the baser instincts of so much of this country.
The movement will change, or it will become irrelevant. However, if all legal and legislative remedies have been cut off for decades, direct action models, like ACT-UP, are likely to become some of the only tools left in the bin to achieve change.
Brynn Tannehill is a former Naval Aviator. She writes for various queer and feminist outlets, and lives in Virginia with her wife and their three children. Follow her @BrynnTannehill on Twitter.