“In a Religious Celebration”? The Religious Defense of LGBT Rights in U.S. Federal Courts

ABSTRACT

This article advances scholarship on the relationship between sexuality, religion, and the law within the United States by analyzing case summaries and court opinions of the federal appellate cases decided between 1990 and 2020 that involve a religion-based claim being used to advance or defend gay and lesbian rights. Contrary to dominant public narratives that position religion uniformly in opposition to progressive sexual values, these cases show how Americans’ religious beliefs and practices include diverse sexual identities. We find that the courts’ reactions to such cases, however, illustrate the tension within legal discourse and hesitancy for the courts to equate religious and moral values with affirming LGBT identities, people, and rights. Our findings suggest that the courts and litigants define what religion is—and what it is not—by positioning it in relation to sexuality.

KEYWORDS:

• LGBT
• first amendment
• gay and lesbian
• sexuality
• Christianity
• religion
• gender and sexuality studies
• history of sexuality
• homosexuality
• LGBT studies
• law
• discrimination

Acknowledgments

We thank Amanda Baumle, Marissa Oliver, Lora McGraw, Lee Paulson, and Alek Duncan for their feedback and research assistance.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Gay, lesbian, or ally plaintiffs included in this study sample represent individuals who were considered the original plaintiffs in the cases brought to the level of the district court. In the 12 cases included in this study that were determined at the level of the Circuit Court, plaintiffs may represent both appellants and appellees.

2. Our database only includes cases from the search term, “free exercise,” if they involve LGBT people or rights. Without limiting these cases, the search produced over 13,000 federal cases. We developed these parameters to make this project feasible for the research team.

3. The Supreme Court treats some non-theistic beliefs as “religions” within the context of the U.S. Constitution and extends the rights of religious freedoms to both atheists and other nonbelievers (see Payne, 2013).

Additional information

Funding

This research was funded by a grant from the National Science Foundation, Division of Social and Economic Sciences, Sociology Program [award # 1918020].