LGBT Equality, Religious Liberty, and Masterpiece Cakeshop
Issues to consider.
Written by Dale Carpenter
In recent sessions, the Texas Legislature has been pulled in seemingly
opposite directions over LGBT equality and religious liberty. But the
U.S. Supreme Court has intimated that these interests can, and should,
be reconciled.
LGBT-equality advocates cite evidence of considerable discrimination
against gay and transgender people in employment, housing, and public
accommodations.1 Religious-liberty advocates say they fear an
increasingly hostile culture toward traditional views about human
sexuality, gender, and marriage.2 Both claim a need to be
legally protected not just in constitutionally sensitive
private spheres (like homes and churches) but in heavily
regulated public ones (like employment and business
services).
One major debate, whether states must recognize same-sex marriages,
was decided in favor of gay couples in Obergefell v. Hodges
(2015).3 More than 513,000 same-sex couples are now married
in the United States.4 The celebration of these marriages has
also occasioned a few high-profile confrontations between gay couples
and wedding-service providers. The larger issue of
interest-reconciliation received suggestive treatment in Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Comm’n (2018), which held
that such disputes could not be adjudicated with animus toward
religion.5
Enter the Texas Legislature, where clashes between LGBT-equality
advocates and religious traditionalists have repeatedly erupted.
In the 2019 session, more than 20 bills opposed by Equality Texas, the
statewide LGBT-lobbying organization, were filed.6 Several of
the bills sought specific faith-based exemptions from occupational
regulations and local nondiscrimination laws.7 One, dubbed
the “license to discriminate” bill by opponents, would have prohibited
licensing agencies or other state regulatory authorities from taking
adverse action against a service provider who claimed a regulation
burdened their religious beliefs. The bill was not limited to shielding
religious objections based on sexual orientation or gender identity.
However, it would have had a disparate impact by permitting widespread
denials of service to LGBT people, who are not otherwise protected by
state or federal law.8 The bill passed the Senate but died in
the House.9
The only religious-liberty measure that actually became law, commonly
known as the “Save Chick-fil-A” bill, amended the Texas Government Code
to prohibit adverse state action against an individual or business based
on membership in, or support of, a religious organization.10
The law is not limited to protecting only those who oppose LGBT
equality. However, impetus for the bill arose after San Antonio decided
not to award an airport-concession contract to Chick-fil-A, which had
previously donated funds to Christian groups opposed to same-sex
marriage.11 In many respects, the law duplicates existing
constitutional protection against government action targeting religion.
LGBT-equality advocates countered with proposals of their own in 2019.
These included bills to ban discrimination based on sexual orientation
and gender identity in employment, housing, public accommodations, state
contracting, and other domains. The bills generally exempted religious
organizations.12 Other bills banned “conversion therapy” by
mental health providers to try to change a minor’s sexual orientation or
gender identity,13 a practice opposed by the major national
mental health associations.
These bills did not pass either. The net result was a stand-off in
2019.
Controversies may flare again in the 2021 session. In January,
Virginia became the first Southern state to approve a comprehensive LGBT
nondiscrimination statute.14 In May, a bipartisan group of
Texas lawmakers announced plans to introduce similar legislation in
2021.15 They are touting benefits to the state economy from
such a law.16
Opponents of such nondiscrimination laws may demand new religious
exemptions. Texas Values, a religious-conservative lobby, has identified
several priorities.17 The Baptist General Convention of Texas
has called for laws allowing “faith-based family service providers” to
refuse service “based on their deeply held religious
beliefs.”18
Is there a way forward? In Masterpiece Cakeshop, the U.S.
Supreme Court unanimously affirmed that states have the power to broadly
protect LGBT Americans from private discrimination.19 Even
the most conservative members of the court agreed:
Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.20
The court noted that religious objections to same-sex marriage are
“in some instances protected forms of expression.” But it added that
“such objections do not allow business owners and other actors in the
economy and in society to deny protected persons equal access to goods
and services under a neutral and generally applicable public
accommodations law.”21
The U.S. Constitution does not require Texas to protect LGBT persons
from such private discrimination. Nor does it require Texas to excuse
all faith-based objections from compliance with nondiscrimination laws.
The Legislature could choose a winner-take-all approach.
Or the Texas Legislature could choose to accommodate the core needs of
both LGBT residents and religious traditionalists. Specifically
admonishing only adjudicators, the court concluded its Masterpiece
Cakeshop decision with words that might also guide legislators in
the next session: “[T]hese disputes must be resolved with tolerance,
without undue disrespect to sincere religious beliefs, and without
subjecting gay persons to indignities when they seek goods and services
in an open market.”22 TBJ
The author would like to thank his research assistants, Nita Hight
and Joe LeCroy, for their excellent work on this article.
DALE CARPENTER
is a professor of law and the Judge William Hawley Atwell Chair of
Constitutional Law at SMU Dedman School of Law.
