How Sex Discrimination Law Helps Us Resolve LGBTQ Religious Exemption Claims
Kyle C. Velte
This essay is based on the author’s 2021 Minnesota Law Review article “The Nineteenth Amendment as a Generative Tool for Defeating LGBT Religious Exemptions.”
Since the U.S. Supreme Court held that marriage equality is the law of the land in 2015, American society has been embroiled in a cultural and legal conflict over the appropriate balance between LGBTQ rights and religious liberty. The most visible of these conflicts involve wedding vendors, such as photographers and bakers, who seek to deny goods or services for same-sex couples based on the vendors’ sincerely-held religious belief that marriage is between one man and one woman. To serve a same-sex couple thus would force the vendor to act inconsistently with their religious beliefs.
These vendors operate what are known as public accommodations. “Public accommodations” is a broad term that includes most businesses open to the public, such as restaurants, hotels, retail stores, and doctors’ offices. Public accommodations laws are a type of antidiscrimination law that prohibit discrimination against certain classes of customers — groups that have been historically marginalized. For example, forty-five states and the District of Columbia have public accommodations laws that prohibit marketplace discrimination on the basis of race, ancestry, sex, and religion. In short, these laws prevent business owners from turning away customers based on a protected characteristic such as the customer’s race or sex. Our national commitment to equality and antidiscrimination underlies these laws — we think all customers should be served at businesses that are open to the public. But these antidiscrimination laws introduce the possibility that our dedication to equality might sometimes bump against another important national commitment: liberty. The liberty of a shopkeeper to choose their customer or for a doctor to choose their client is also an important American value, one that might sometimes conflict with antidiscrimination laws.
Twenty-eight states and the District of Columbia have a public accommodations law that prohibits business owners from denying goods or services to a customer based on the customer’s sexual orientation or gender identity (“SOGI”). In these states, wedding vendors face a challenge: the denial of goods and services to same-sex couples would be breaking the law. The wedding vendors thus need a legal basis on which to argue that they should be exempt from complying with the public accommodations law. That legal basis is the First Amendment. Specifically, these wedding vendors argue that the First Amendment’s Free Exercise and Free Speech clauses support their claims for religious exemptions from public accommodations laws so that they may lawfully turn away LGBTQ customers.
The U.S. Supreme Court has heard two cases that present this clash between equality/antidiscrimination and liberty. One involved a baker who refused to sell a wedding cake to a same-sex couple; the other involved a Catholic foster care agency that refused to certify same-sex couples as potential foster parents. In both, the central question of whether the First Amendment’s speech or religion clause requires a religious exemption from public accommodations laws was left unanswered by the Court. In its 2022-2023 term, the Court will hear a case involving a Christian videographer that again presents the question of whether the First Amendment’s free speech clause allows or requires such religious exemptions for SOGI discrimination.
Much ink has been spilled about the merits of these First Amendment claims (including my own ink). Here I choose to focus on a subsidiary yet important question raised by the wedding vendors cases, namely whether states have a compelling interest in eradicating SOGI discrimination in the public square. I argue that long-established sex discrimination law answers that question in the affirmative, which in turn may resolve the ultimate question of SOGI religious exemptions.
LGBTQ customers and state officials, both of whom object to religious exemptions, often argue with what is known as the “race analogy” in these cases. That analogy goes like this: nearly everyone agrees that if a wedding vendor refused goods or services to a straight, interracial couple based on the vendor’s religious belief about the commingling of races, Courts would reject that argument. Thus, the claim for a religious exemption would be rejected and the vendor would be required to adhere to the public accommodations law. Is there any reason why the outcome should be different when sexual orientation, rather than race, is the reason the vendor wants to deny good or services to a same-sex couple? After all, the public accommodations law protects against both racial and SOGI discrimination. My answer is “no” — there is no principled way to distinguish between SOGI discrimination and race discrimination. If we would deny a religious exemption for race, we must also deny a religious exemption for SOGI. Put another way, both types of discrimination are equally prohibited by the law, so an exemption for LGBTQ customers means that there must be an exemption for interracial couples. Because most of us agree that such race discrimination should not be permitted, we must reach the same conclusion for SOGI.
However, the wedding vendors’ response is “yes” — the answer is and ought to be different between race and SOGI. To support this position, the vendors rely on the constitutional law principle referred to as the the tiers of scrutiny. When a law that classifies people based on race, sex, or SOGI is challenged under the Fourteenth Amendment’s Equal Protection Clause, courts will require the government to justify why it decided to classify people that way. The tiers of scrutiny framework is just a fancy way of saying that the government will have to offer different kinds of justifications depending on which classification the government uses.
If the law classifies based on race, then the government must satisfy what is known as “strict scrutiny”; it must have a compelling interest to justify that law, and the law must be narrowly tailored to achieve that interest. If the law classifies based on sex, it must satisfy what is known as “intermediate scrutiny” — the government must provide an “exceedingly persuasive” justification based on an important interest and the law must be substantially related to that interest. There is one more level of review, known as “rational basis,” under which the government must show a legitimate interest for the law and that the law is rationally related to that interest. If a law classifies based on SOGI … well, that is a bit of an open question.
Today’s exemption seekers contend that classifications based on SOGI are subject to rational basis review and, as such, states do not have a compelling interest in protecting against SOGI discrimination in the marketplace. The argument continues: Because race-based classifications are subject to strict scrutiny, states do have a compelling interest in protecting against racial discrimination in the marketplace, such that no religious exemptions would ever be granted for race-based discrimination in public accommodations.
What about sex-based classifications vis-à-vis public accommodations laws? What kind of interest does a state have in eliminating sex discrimination in the marketplace? In 1984, the U.S. Supreme Court answered that question in Roberts v. Jaycees — a case involving a First Amendment free speech exemption claim. But, before we get to that, a brief detour is necessary to place that case in historical context.
Many state public accommodations laws did not include “sex” as a protected characteristic until the late 1960s and into the 1970s. Before that time, restaurants, bars, and other establishments regularly excluded women with no legal repercussions. As the 1970s came to a close, thirty-one states included “sex” in their public accommodations laws. But, like marriage equality, the social and economic equality bestowed upon women through these laws resulted in backlash. Similar to today’s exemption seekers, some public accommodations argued that the First Amendment’s right to free speech allowed them to be exempt from the law’s requirement to admit women. That was the claim in the Jaycees case.
The Jaycees is a non-profit, membership civic organization composed of a national office and state chapters. At the time of the litigation, the national office’s policy did not permit women to be full, voting members. However, two chapters in Minnesota did allow women to be full members. The national office disagreed with this decision and threatened to penalize the Minnesota chapters. In response, the Minnesota chapters argued that the full inclusion of women was required by the Minnesota public accommodations law. To that, the national office responded that the Jaycees should be exempt from complying with Minnesota law because to compel compliance with the law would violate a First Amendment’s free speech guarantee known as expressive association. Thus, the national office sought a First Amendment exemption from compliance with public accommodation law with regard to its prohibition against sex discrimination. Today’s exemption seekers do the same with regard to prohibitions against SOGI discrimination.
The Court agreed that the law infringed on the Jaycees’ First Amendment speech rights. Importantly, though, that was not the end of the analysis. Once a court finds that a First Amendment right has been infringed, it asks whether the infringement is permissible and that question is answered using the strict scrutiny test described above. The Court asks whether the state has a compelling interest in infringing on the Jaycees’ speech rights and, if so, is the public accommodations law narrowly tailored to achieve that interest?
The Court held that Minnesota had a compelling interest in eradicating discrimination against women that justified the infringement on the Jaycees’ First Amendment rights. It proclaimed that the state’s goal of “eliminating discrimination and assuring its citizens equal access to publicly available goods and services” was unrelated to the suppression of speech and “plainly” served compelling state interests “of the highest order.” Finally, the Court held that public accommodations laws are, in fact, narrowly tailored to achieve the state’s compelling interest, thus satisfying strict scrutiny. As a result, the Court rejected the Jaycees exemption request. Most important for my argument here is that Jaycees teaches that eliminating sex discrimination in public accommodations is a compelling state interest — one of the highest order.
As noted above, if today’s exemption seekers are wrong in their assertion that states do not have a compelling interest in eradicating SOGI discrimination in the marketplace, then their argument against the race analogy is largely gutted. When Jaycees is read alongside Bostock v. Clayton County, a strong argument emerges that there is a compelling state interest in eradicating SOGI discrimination in the public square. As a result, the state has the same level of interest in eradicating race and sex and SOGI discrimination in the marketplace. If accepted by the Court, this reasoning means that SOGI cannot be treated differently than race or sex when analyzing claims for religious exemptions and the wedding vendors’ claims must fail.
So how do we get there?
Bostock presented the question of whether a federal employment discrimination statute, Title VII, covers LGBTQ employees. Title VII does not include the terms “LGBT,” “sexual orientation,” or “gender identity.” It does, however, prohibit sex discrimination in employment. The question in Bostock was whether Title VII’s prohibition on sex discrimination also includes SOGI discrimination.
The Court held SOGI is inextricably connected to sex. As a result, discrimination based on SOGI is sex discrimination. The Court reasoned that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” With regard to sexual orientation, the Court observed that “if the employer fires the male employee for no reason other than the fact that he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleagues.” With regard to transgender employees, it concluded that “if the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” In both situations, but-for the employee’s sex, they would not have been subjected to employment discrimination. Thus, SOGI discrimination is sex discrimination because “[i]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Bostock’s holding that SOGI discrimination is a type of sex discrimination connects to the Jaycees case in a way that is consequential to the analysis of religious exemption cases. In particular, Bostock’s equation of SOGI discrimination to sex discrimination diminishes, if not eliminates, exemption seekers’ argument that states do not have a compelling interest in prohibiting SOGI discrimination in the marketplace. Let’s explore how.
The Jaycees Court emphatically held that outlawing sex discrimination in the marketplace is a compelling state interest, going so far as to hold that it is an interest “of the highest order.” It reached that conclusion even though sex-based classifications generally are subject to intermediate scrutiny under the Equal Protection Clause (which SOGI should also receive after Bostock given that court’s determination that SOGI discrimination is sex discrimination). Importantly, the Jaycees Court analogized to race on its way to determining that the state has the same compelling interest in prohibiting both race and sex discrimination:
… [I]n upholding Title II of the Civil Rights Act of 1964, . . . which forbids race discrimination in public accommodations, we emphasized that its “fundamental object . . . was to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’” . . . That stigmatizing injury, and the denial of equal opportunities that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of their sex as by those treated differently because of their race.
The Court thus proclaimed that sex-based discrimination in the marketplace is comparable to race-based discrimination in the marketplace: it is just as serious, it inflicts similar harms, and it is equally redressable. The similarities between race and sex discrimination in public accommodations led the Court to conclude that “[a]ssuring women equal access to such goods, privileges, and advantages clearly furthers compelling state interests.”
The importance of the Jaycees decision to today’s religious exemption cases is twofold. First is that the Court’s determination that race and sex discrimination in the marketplace are analogous. Second is that the Court’s conclusion that a state has a compelling interest in prohibiting both sex and race discrimination in public accommodations. Together, these take-aways from Jaycees, when considered alongside Bostock, help us resolve today’s SOGI religious exemption claims.
Bostock concluded that SOGI discrimination is sex discrimination. Framing this holding with Jaycees two key holdings takes us to this result: Bostock directs that SOGI discrimination is sex discrimination. Jaycees directs that eliminating sex discrimination in public accommodations, like eliminating race discrimination in public accommodations, is a compelling state interest. It thus follows that eliminating SOGI discrimination in public accommodations is a compelling state interest. This argument and its rationale address — and should defeat — the argument by today’s exemption seekers that states do not have a compelling interest in applying or enforcing their public accommodations laws to LGBTQ consumers when vendors of faith seek to deny goods or services to such customers.
In sum, Jaycees and Bostock form a doctrinal through-line from race discrimination to sex discrimination to SOGI discrimination. That through-line should frustrate, if not knock out, the argument by today’s exemption seekers that race is “just different” such that courts may, with intellectual integrity, deny race religious exemptions but grant SOGI religious exemptions. To the contrary, longstanding sex discrimination law (Jaycees), when considered alongside contemporary sex discrimination law (Bostock) direct that the intellectually consistent move in today’s religious exemption cases is to conclude that both race and SOGI religious exemptions must be denied. The state has a compelling interest in ending both types of discrimination in the marketplace. ♦
Postscript from the Author: This NYT podcast includes statements of Aimee Stephens, the transgender plaintiff in Bostock. Aimee passed away before the decision was handed down. Many attribute her untimely death to health problems that were exacerbated when she was fired from her job for being transgender, which led to the litigation. Her voice is a poignant reminder that sometimes progress is not fast enough for those who are most marginalized.
Kyle Velte is an Associate Professor at the University of Kansas School of Law, where she teaches Evidence, Torts, Employment Discrimination, and Sexual Orientation & the Law. Her scholarship examines the intersection of sexuality, gender, and race with constitutional and statutory guarantees of non-discrimination to provide insight into contemporary legal debates and current normative questions surrounding LGBTQ, gender, and racial civil rights issues.
Velte, Kyle C. “How Sex Discrimination Law Helps Us Resolve LGBTQ Religious Exemption Claims.” Canopy Forum, July 12, 2022. https://canopyforum.org/2022/07/12/how-sex-discrimination-law-helps-us-resolve-lgbtq-religious-exemption-claims/.