Religious Exemption, LGBT Rights, and the Social Construction of Harm and Freedom

Authors

Emily Kazyak, University of Nebraska - LincolnFollow
Kelsy Burke, University of Nebraska-LincolnFollow
Maia Behrendt, University of Nebraska-LincolnFollow
Marissa OliverFollow

Document Type

Article

Date of this Version

2023

Citation

Published in Law & Social Inquiry, 2023

doi:10.1017/lsi.2023.5

Comments

Copyright © 2023 Kazyak, Burke, Behrendt, & Oliver. Published by Cambridge University Press on behalf of the American Bar Foundation. Used by permission.

Abstract

In this article, we examine how courts make decisions in religious exemption cases that implicate LGBT rights in a wide range of contexts including education, employment, and medical care. Through an in-depth qualitative analysis of 50 federal cases decided between 1990 and 2020, we demonstrate a shift in how anti-LGBT sentiment is expressed by parties bringing religion-based claims—from a broad condemnation of LGBT identity to a narrow condemnation of same-sex marriage—and find that courts are more likely to rule in favor of the latter. We show how courts construct competing understandings of harm and religious freedom depending on the context of the case and whether the setting is deemed public or private. Our analyses shed light on the shifting and competing meanings about religion, sexuality, and public life in the United States.