For decades, litigators have advanced LGBT rights by appealing to liberty and equality principles expressed in the Fifth and Fourteenth Amendments and their state-law counterparts. These successes, coupled with gains in statutory protections against LGBT discrimination, have motivated groups opposing LGBT equality to adopt new legal arguments. These groups have recently enjoyed a degree of success asserting First Amendment claims that, among other things, have sought to exempt religiously motivated conduct from the reach of nondiscrimination laws. In other cases, the government itself has been complicit in attempting to protect discriminatory conduct, ostensibly based on religious-freedom concerns. For LGBT-allied practitioners facing an unfamiliar landscape, this session provides a short summary of the religion jurisprudence that frames these attacks, discusses some of the ongoing cases typical of these efforts, and discusses both recently decided and upcoming US Supreme Court cases that likely will change the landscape for years to come. Rather than isolated individual presentations, the format primarily will consist of a forward-looking roundtable conversation among the panelists concerning the role of religion in LGBT-rights litigation. Discussion of some specific ongoing cases (e.g., Fulton, Meriwether, Minton) will be included to provide context. Audience questions will be encouraged to help guide the discussion.
Facilitated by Kenneth Upton.