‘Because of Sex’: The Coming Battle between the Free Exercise Clause and the Equality Act

Christine M. Venter is a Teaching Professor at Notre Dame Law School and Affiliated Faculty in Gender Studies at the University of Notre Dame

The Equality Act has had a long and arduous history in its quest to become law. The Act was first introduced in 1974 by Congresswoman Bella Abzug, who was determined to end discrimination on account of “sex, marital status, and sexual orientation” in employment, housing, and public accommodations. Although that effort failed, the Act was reintroduced in 2019 and passed the House by a vote of 276 in favor to 173 opposed. Under the leadership of Mitch McConnell, the Senate declined to move it forward for a vote.

Enter the Supreme Court, and Justice Gorsuch’s majority opinion in Bostock v. Clayton County, in June 2020, that Title VII’s prohibition on discrimination “because of … sex,” extended to sexual orientation and gender identity. Although the Court specifically limited its analysis to Title VII, focusing only on the employment discrimination claims based on sexual orientation and gender identity that were before the Court and not on any other area of federal law, both supporters and opponents of equality for the LGBTQ+ community were quick to question the case’s impact.

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Religious Freedom and Same Sex Marriage Laws: Constitutional and Other Issues

Neil Foster is an Associate Professor at Newcastle Law School (Australia). His blog,  Law and Religion Australia,  treats Law and Religion issues not only in Australia and other Commonwealth nations, but in the United States and elsewhere.

Recognition of “same-sex marriage” has been proceeding apace in Western societies for the last few decades. Adoption of same-sex marriage, however, raises religious freedom issues. It does so because the move effectively amounts to a change in a nation’s public morality and takes a stance on the issue as to what kind of sexual activity is legitimate, which is in sharp opposition to the views taken by mainstream religions for many years. Representatives of those religions have long been involved in solemnizing marriages; questions now arise as to whether they will be required to solemnize same-sex unions. Similar issues arise for believers involved as small businesses in related “wedding industries.” At a broader level, the change means that many religious groups are now opposed to the wider societal consensus on the question of sexual morality, and questions are raised as to whether they will still be able to play a role in the public life of the community.

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Obergefell v. Hodges: Five Years Later

Supreme Court of the United States ends marriage discrimination – Obergefell vs Hodges. Photo Creator: Ted Eytan

On June 26, 2015 the Supreme Court of the United States issued its momentous opinion in Obergefell v. Hodges.  Only a few SCOTUS decisions have provoked such strong debate over the majority’s arguments and its understanding of human dignity or the nature of judicial power.  In this blog conversation, American and European legal scholars and lawyers reflect on the postmodern understanding of marriage that inspired the decision and on the consequences of Obergefell for promotion of LGBTI-people’s rights, on religious exemptions, on democracy in the United States, on children’s rights, on the European Court of Human Right’s jurisprudence, and on the search for the compromise between religious freedom and anti-discrimination claims. This variety of reflections, both positive and critical, illustrates how the decision has become an important episode in American and global legal and human rights history. (more…)

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