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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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