Plessy Redux: Why the Human Rights of Gay, Lesbian, and Transgender Citizens Lost to Religious Claims

• Jurisdiction: United States,Federal
• Publication year: 2022
• Citation: Vol. 71 No. 7

Plessy Redux: Why the Human Rights of Gay, Lesbian, and Transgender Citizens Lost to Religious Claims

Laura S. Underkuffler

PLESSY REDUX: WHY THE HUMAN RIGHTS OF GAY, LESBIAN, AND TRANSGENDER CITIZENS LOST TO RELIGIOUS CLAIMS

Laura S. Underkuffler^*

Preface

I am delighted to contribute this Essay to this collection of works celebrating Michael Perry's lifetime achievements. From my first acquaintance with his work in the late 1980s, I have both admired and been profoundly challenged by it. One of his greatest and most enduring contributions is his foundational idea that every human life is sacred and, therefore, all are entitled to basic human rights.¹ In his words, it is this "fundamental conviction [that is] at the heart of the morality of human rights."²

What is the ultimate source for this "sacredness view," upon which so much of human law depends? Perry is inherently skeptical about the capacity of secular reasoning and convictions to offer a coherent account of both human rights and the innate worth of human beings upon which they are founded. Rather, the premise that every human being is "sacred" or "inviolable" is inescapably religious.³ In other words, religious beliefs and secular objectives work together to create legal regimes of human rights.

As a matter of personal understanding and conviction, I do not doubt there are both great truth and power in what he says. For me, questions about human worth and destiny involve inquiries that can easily transcend the limits of the human mind. In this Essay, rather than engaging with his work in a theoretical vein, I have chosen to engage it in an immediate and very critical context. Religion can create, ground, and support human rights. But what if it does not?

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Table of Contents

Introduction...........................................................................................1612

I. Masterpiece Cakeshop and Fulton: The Current Supreme Court Landscape.........................................................................1617

A. Masterpiece Cakeshop............................................................ 1617
B. The Fulton Case...................................................................... 1624

II. Separate, Subordinate, but Somehow "Equal": The Legal Architecture of the Plessy Case..............................................1628
III. Plessy Redux: Masterpiece Cakeshop, Fulton, and the "Accommodation" of Discrimination......................................1631

A. The Invisible Victim ................................................................ 1632
B. The Vanishing Norm............................................................... 1635
C. The Claim of No Harm ........................................................... 1638

Conclusion...............................................................................................1640

Introduction

The clash between recognition of the human rights of gay, lesbian, and transgender citizens⁴ and the religious individuals and institutions that oppose them is one of the defining issues of our time. Gender-nonconforming citizens, who have endured centuries of violence and discrimination,⁵ now demand basic civil rights, such as the right to marry and form families and the right to equal treatment in employment, housing, credit, health care, and all other areas that non-LGBTQ+ Americans take for granted.

As a result of these efforts, there has been a sea change in legal recognition of rights regarding sexual orientation and gender identity in state and local legislation over the past thirty years. With regard to housing, twenty-two states and the District of Columbia explicitly prohibit discrimination based on sexual orientation and gender identity; nine states interpret existing prohibitions on sex discrimination to include sexual orientation and gender identity; and one state

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explicitly prohibits discrimination based on sexual orientation only.⁶ The number of states prohibiting discrimination in public accommodations is virtually the same.⁷ Polling data show that the number of people who believe that marriages between same-sex couples should "be recognized by law, with the same rights as traditional marriages," increased from twenty-seven percent in 1996 to seventy percent in 2021.⁸ In 2019, ninety-three of poll respondents believed that gay men and lesbian women should have the same job opportunities as non-LGBTQ+ individuals; seventy-five percent agreed that gay and lesbian applicants should be able to adopt children; and the percentage of respondents who believed that sexual orientation is an innate human characteristic increased to forty-nine percent.⁹ Very recently, in a landmark opinion, the United States Supreme Court held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964.¹⁰

All of these developments have been resisted—often vehemently—by those who oppose gay marriage and other rights for gay, lesbian, and transgender people, particularly on religious grounds. For example, a municipal clerk refused to issue a same-sex marriage license,¹¹ an employee of a government contractor (hired to provide counseling services to government employees) refused to provide same-sex relationship counseling,¹² and a physician refused to provide infertility treatment to a lesbian woman,¹³ all on asserted religious grounds. Religious objectors have refused to provide public hotel rooms,¹⁴ rent a room for a wedding reception,¹⁵ sell flowers,¹⁶ comply with a public school's guidelines allowing transgender students to use locker rooms, bathrooms, and

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pronouns in accordance with their gender identity,¹⁷ and create a wedding website,¹⁸ on the ground that compliance with laws protecting gay, lesbian, and transgender people was forbidden by their religious beliefs. At times, legislative responses have been pressed to nullify real or feared LGBTQ+ protection laws.¹⁹ Conflicts over demands for religious exemptions from LGBTQ+-protective laws have dominated popular media and the work of academic commentators and the courts.

Although all of this seems to be new, in fact, it is not. Dealing with clashes between religious claims and civil-rights laws is familiar territory for the American courts. Over past decades, landmark cases have dealt with religious claims of the right to engage in what I call "odious discrimination"—discrimination against people on the basis of their immutable human characteristics or identity in a way that secular law forbids.²⁰ Examples of such discrimination include that which is rooted in the color of a person's skin, the parents from whom the individual was born, the sexual anatomy that a person possesses (or does not possess), and the mere fact of one's religious identity or affiliation.²¹ And when claimed religious beliefs or practices are asserted to demand the right to engage in discrimination of this kind, it is overwhelmingly the conclusion of contemporary American law that those beliefs have no legal priority, protection, or accommodation.²²

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Consider, for instance, the area of race. In Loving v. Virginia,²³ decided in 1967, and Bob Jones University v. United States,²⁴ decided sixteen years later, the United States Supreme Court rejected once and for all the idea that discrimination on the basis of race can be justified on the basis of religious belief or practice. Loving involved a Virginia anti-miscegenation statute that prohibited a "white person" from marrying any person other than another "white person."²⁵ The Court struck this down, observing that "[o]ver the years, [the] Court has consistently repudiated '[d]istinctions between citizens solely because of their ancestry' as being 'odious to a free people whose institutions are founded upon the doctrine of equality.'"²⁶ In the process, the religious justification that was advanced by the State was implicitly rejected.²⁷ In Bob Jones, the University asserted that its Christian religious beliefs required that it prohibit interracial dating and marriage by its students, despite the provisions of Section 501(c)(3) of the Internal Revenue Code of 1954, which governed tax-exempt organizations.²⁸ The Court rejected this argument on the ground that the government interest in eradicating racial discrimination in education was compelling.²⁹

Although these two cases dealt with clashes between religious rights and anti-discrimination laws in particular settings, the principles that they established have become deeply entrenched in American law. County clerks, hotel owners, landlords, employers, commercial purveyors of publicly sold goods, and anyone else involved in offering public goods or services cannot refuse to serve, process, hire, or otherwise deny equal access to people on the basis of race, whether their reasons are religious or not.³⁰ As one commentator has written, "we understand it is impermissible to discriminate based on race.

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We understand that it is impermissible, even when done in the name of religion.³¹

There is also—importantly for our purposes—no judge or contemporary scholar who claims that racially discriminatory religious beliefs should be "respected" or "accommodated" in any way. There is no argument that a city clerk who—on the basis of religious belief—refuses to serve Black, Asian, or mixed-race people should be given the opportunity to "step aside" and refer the applicant to a colleague, or that a hotel owner who asserts religious beliefs can refuse to rent a room to a Black, Asian, or mixed-race person if there is another place down the road where the customer could stay. Indeed, suggesting that respect or accommodation is required for religiously based actions that are avowedly motivated by an applicant's or customer's race is both legally and societally unthinkable.

There is a similar aversion both legally and societally to the granting of respect or accommodation to...