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17 First Amend. L. Rev. 237 (2018-2019)
Religious Arguments, Religious Purposes, and the Gay and Lesbian Rights Cases

handle is hein.journals/falr17 and id is 252 raw text is: RELIGIOUS ARGUMENTS, RELIGIOUS PURPOSES, AND THE GAY AND LESBIAN RIGHTS CASES Steve Sanders* I. INTRODUCTION The Supreme Court's four major gay and lesbian rights decisions-Romer v. Evans,1 Lawrence v. Texas,2 United States v. Windsor,3 and Obergefell v. Hodges4-were not cases about the First Amendment or religion. But collectively, often implicitly and sometimes explicitly, these cases teach us something about the role which religion should play in questions of constitutional equality and liberty. These gay and lesbian rights cases, especially the first three, have been understood to stand for the principle that government may not enact laws aimed at expressing moral disapproval, or animus, toward homosexuality or same-sex relationships.5 In turn, this association between animus and opposition to gay and lesbian equality has led some commentators (and dissenting justices) to accuse the Court's majority of imposing an orthodoxy6 and of demonstrating hostility toward Americans whose religious views lead them to oppose homosexuality or legal rights for gays and lesbians. This criticism, however, misses the mark, because it confuses religious belief and advocacy by private persons and organizations, on the one hand, with the imposition of religion- based policies by government, on the other. In Lawrence and Obergefell in particular, the Court went out of its way to acknowledge that many people supported laws restricting gay and lesbian liberty and equality out of good-faith religious convictions.7 But religious arguments in the public square are * Associate Professor of Law, Maurer School of Law, Indiana University Bloomington. 1 517 U.S. 620 (1996). 2 539 U.S. 558 (2003). 3 570 U.S. 744 (2013). 4 135 S. Ct. 2584 (2015). 5 See, e.g., Dale Carpenter, Windsor Products: Equal Protectionfrom Animus, 2013 SuP. CT. REv. 183, 188 (2013) (arguing that Romer, Lawrence, and Windsor cumulatively make it clear that the perceived social harm of homosexuality, along with simple moral disapproval of it, is no longer a proper basis on which to carve out gay people from legal protection). 6 Obergefell, 135 S. Ct. at 2642 (Alito, J., dissenting). 7 See Lawrence, 539 U.S. at 571; Obergefell, 135 S. Ct. at 2594. See also Michael J. Perry, Religion in Politics, 29 U.C. DAVIS L. REv. 729, 756 (1996); Who WeAre, ALLIANCE DEFENDING FREEDOM, https://www.adflegal.org/about-us (last visited Mar. 7, 2019).

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