Title IX: An Imperfect but Vital Tool To Stop Bullying of LGBT Students

This Feature discusses the emerging importance of Title IX litigation and enforcement as a tool to stop peer-on-peer harassment of LGBT students in elementary and secondary schools. Federal courts and agencies consistently recognize that bullied LGBT students may bring sex discrimination claims under Title IX based on a theory of gender stereotyping. Some even view anti-LGBT animus as per se sex discrimination. I argue that Title IX’s effectiveness in addressing the problem is limited by overly narrow judicial and agency views of what constitutes actionable sex discrimination. Federal courts and agencies often focus on stereotypes about overt masculinity and femininity and fail to consider stereotypes about the appropriate roles of girls and boys and the relationships between them. They also offer conflicting views on whether bullying based on a student’s actual or perceived LGBT status constitutes per se sex discrimination. If federal courts and agencies consistently considered the full spectrum of gender stereotypes and recognized that bullying based on anti-LGBT animus is also sex discrimination, Title IX would better protect LGBT students from harassment.

This Feature also discusses the need for legislation that expressly prohibits discrimination based on actual or perceived sexual orientation and gender identity. I argue that this express enumeration is needed to ensure both that schools clearly understand their duty to prevent a hostile educational environment and that LGBT students clearly understand their right to an equal education.

Even if Congress amended Title IX or passed new legislation to enumerate LGBT protections—and federal courts and agencies interpreted Title IX as broadly as I advocate—LGBT bullying would not disappear. Title IX cannot carry the weight of this problem on its own. Other reforms are needed, including school policies with enumerated protections for LGBT students, mandatory professional development for school staff, anti-bullying training and education programs for students, and district accountability for reporting incidents of LGBT bullying. This is a complex problem that requires a multipronged solution.

author. Senior Attorney, Public Justice, P.C., a national public interest law firm that pursues high impact lawsuits to combat social and economic injustice, protect the earth’s sustainability, and challenge predatory corporate conduct and government abuses; Head of Public Justice’s Anti-Bullying Campaign, which seeks to hold school districts and officials accountable for failing to protect students from bullying, make systemic changes in the ways that schools respond to bullying incidents, and educate others about bullying and the law. I thank Georgetown Law student Lauren Kelleher and Public Justice Thornton-Robb Attorney Gabriel Hopkins for their research assistance on this Feature, former Public Justice Cartwright-Baron Attorney Sarah Belton for her input and comments on the proposal for this Feature, and Claire Simonich and other editors at the Yale Law Journal for their insightful comments on earlier drafts.

Introduction

When Seth Walsh “came out” as gay in sixth grade, his life changed dramatically.1 His classmates became openly hostile and bullied him relentlessly.2 They routinely called him derogatory names, such as “faggot,” “pussy,” “pansy,” and “sissy,” and sometimes told him to “burn in hell” or “kill himself.”3 The harassment escalated throughout middle school and eventually became physically and sexually violent.4 Walsh’s peers pushed him into lockers, obstructed his path as he tried to walk by, hit food out of his hands, and threw food, water bottles, pencils, and erasers at him.5 They also grabbed Walsh “from behind while suggesting that he would be sexually gratified by the contact,”6 and one student “attempted to shove a pencil up the seat of [Walsh’s] pants.”7 Some of the most hostile incidents occurred in the boys’ locker room, where classmates pulled down his pants and a male peer threatened to rape him.8 Walsh and his mother repeatedly reported the bullying to school officials, but to no avail.9 Walsh’s peers were permitted to bully him with impunity. Even some teachers joined in the disparagement.10 Shortly after being “threatened, taunted, followed, and physically assaulted” at a local park by four students, Walsh committed suicide.11 He was thirteen.12

Walsh’s experience is all too common for students who identify as (or are perceived to be) lesbian, gay, bisexual, or transgender (LGBT). LGBT students are bullied at dramatically higher rates than other students.13 They are twice as likely as non-LGBT students to be verbally harassed or physically assaulted at school.14 A recent survey conducted by the Gay, Lesbian & Straight Education Network (GLSEN) found that “[s]chools nationwide are hostile environments for a distressing number of LGBT students, the overwhelming majority of whom routinely hear anti-LGBT language and experience victimization and discrimination at school.”15 Of the 7,898 LGBT students GLSEN surveyed about their experience in the past year of school, 74.1% were called names or threatened because of their sexual orientation and 55.2% because of their gender expression; 36.2% were pushed or shoved because of their sexual orientation and 22.7% because of their gender expression; and 16.5% were punched, kicked, or injured with a weapon because of their sexual orientation and 11.4% because of their gender expression.16 Moreover, school staff did nothing in response to 61.6% of students who reported an incident.17 As a result of routine bullying, many LGBT students miss school, get lower grades, and are less likely to pursue post-secondary education than their peers; they also suffer higher levels of depression and lower levels of self-esteem.18

In recent years, school bullying in general, and the targeting of LGBT students in particular, has garnered national attention. In 2011, the Obama Administration held the first White House Conference on Bullying Prevention,19 following media reports on several LGBT students who committed suicide after being bullied at school.20 The U.S. Department of Education’s Office for Civil Rights (OCR) issued guidelines in 2010 clarifying schools’ obligations to address bullying that violates any of the federal anti-discrimination statutes21—including “gender-based” harassment of LGBT students22 that violates Title IX of the Education Amendments of 1972.23 OCR has also investigated and reached resolution agreements with school districts that failed to respond appropriately to gender-based bullying of LGBT students.24 These actions reflect cultural shifts in societal views of both school bullying and the LGBT community.25 Bullying is now recognized as a serious problem that needs to be addressed, not a normal rite of passage to be endured.26 And the LGBT community is receiving increasing public acceptance.27

These cultural shifts are also reflected in federal court decisions following the Supreme Court’s ruling in Davis v. Monroe County Board of Education, which allowed damages actions under Title IX against school districts that respond inadequately to student-on-student sexual harassment.28 Within the last two decades, many federal courts have permitted LGBT students to sue school districts for sex discrimination under Title IX for failing to protect them from gender-based bullying by other students.29

This Feature addresses the emerging importance of Title IX litigation and enforcement as a tool to stop peer-on-peer bullying of LGBT students in elementary and secondary (commonly referred to as “K-12”) schools; it also explores Title IX’s limitations in this area. Although Title IX jurisprudence post-Davis shows promise for LGBT students whose school districts fail to protect them from bullying,30 action beyond the current scope of Title IX litigation and enforcement is needed to prevent and address the problem.

Part I provides a brief overview of the types of sex discrimination that Title IX prohibits and explains how the Supreme Court’s decision in Davis opened the door to Title IX claims by LGBT students. Part II discusses the evolution of Title IX jurisprudence on the harassment of K-12 LGBT students. It first addresses how this evolution occurred, examining the influence of employment discrimination precedent under Title VII of the Civil Rights Act of 1964.31 This Part also discusses key Title IX cases filed by LGBT or perceived-LGBT students and federal enforcement actions, showing the roles that gender stereotyping and anti-LGBT animus play in these cases. This Part concludes by explaining the important role that Title IX litigation and enforcement play in curbing the harassment of LGBT students.

Part III addresses the limits on Title IX’s effectiveness and the reforms needed to stop the bullying of K-12 LGBT students. It argues that Title IX’s effectiveness in providing LGBT students with equal access to educational opportunities is limited by two key deficiencies: (1) courts are interpreting the statute’s prohibition against sex discrimination too narrowly, and (2) the statute does not expressly prohibit discrimination on the basis of sexual orientation or gender identity. Specifically, this Part argues that courts should interpret Title IX to cover all harassment of LGBT students because this harassment is always based on gender stereotypes. In addition, harassment of students based on their sexual orientation or gender identity is per se sex discrimination. Furthermore, this Part makes the case that Congress should amend Title IX (or pass new, separate federal legislation) to prohibit discrimination in education based on sexual orientation and gender identity, in order to ensure that LGBT students have equal access to educational opportunities. Part III concludes by explaining why these legal reforms to Title IX are nevertheless insufficient. To effectively reduce victimization and improve the educational climate for K-12 LGBT students, schools should also implement anti-bullying policies and training and education programs that specifically address anti-LGBT bullying.

I. overview of sex discrimination prohibited by title ix

Title IX’s prohibition against sex discrimination in education is broad. Under Title IX, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .”32 Title IX covers a host of conduct that creates a hostile educational environment based on sex, including unequal admission, employment and athletic opportunities, sexual harassment, gender-based harassment, and sexual violence.33 Congress passed Title IX in part to remedy gender stereotypes that were interfering with educational opportunities for girls and women.34

More than two decades after Title IX’s passage, the Supreme Court’s decision in Davis paved the way for LGBT students to file Title IX lawsuits based on peer harassment. The plaintiff in Davis was a fifth-grade student in Georgia who filed a Title IX suit based on school officials’ alleged failure to take action in response to complaints about a male classmate who was sexually harassing her.35 The Court held that students subjected to peer sexual harassment may sue their school districts for damages when school officials “are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”36

Although Davis involved male-on-female sexual harassment, the Court did not limit its holding to these circumstances. By defining actionable peer sexual harassment broadly,37 Davis opened the door for LGBT students to file Title IX suits when schools fail to respond adequately to peer harassment based on gender stereotypes or perceived LGBT status.38

LGBT students are frequently bullied for failing to conform to their peers’ stereotypes about how boys and girls should look and act.39 They are also bullied because of their perceived LGBT status.40 These forms of harassment can create a “hostile environment”41 that deprives LGBT students of equal educational opportunities to which all students are entitled, regardless of sex. Post-Davis, Title IX jurisprudence has evolved to include harassment based on gender stereotypes, but the case law is divided on whether Title IX covers harassment based solely on perceived sexual orientation.42

II. gender stereotyping and anti-lgbt animus under title ix

Since Davis, there has been a significant and growing line of Title IX cases involving harassment of K-12 students based on gender stereotypes and perceived LGBT status. Based on twenty-one cases identified as addressing whether LGBT (or perceived LGBT) students had cognizable Title IX claims for peer harassment, courts have delineated two rationales for finding that the harassment was discrimination “on the basis of sex”43 covered by Title IX. One rationale, accepted in all fifteen cases that addressed it, is that the students are harassed for failing to conform to gender stereotypes.44 The second rationale, on which the eight courts to address it are evenly split, is that sexual orientation harassment is sex discrimination per se.45

How did these two rationales evolve? And what do they portend for bullied LGBT students? Title VII precedent on sex discrimination in the workplace has had a significant influence on Title IX.46 Courts and the Equal Employment Opportunity Commission (EEOC) have increasingly recognized that LGBT employees suffering discrimination based on gender stereotypes or LGBT status have cognizable sex discrimination claims under Title VII.47 And bullied LGBT students who have filed Title IX claims are benefitting from this favorable Title VII precedent.48

A. The Influence of Title VII

When interpreting Title IX’s prohibition against sex discrimination in education, courts often rely on Title VII precedent on sex discrimination in employment.49 Two Title VII decisions have played a particularly significant role in Title IX peer harassment cases filed by LGBT students: Oncale v. Sundowner Offshore Services, Inc., which held that same-sex sexual harassment is actionable under Title VII,50 and Price Waterhouse v. Hopkins, which held that harassment based on an individual’s nonconformity to gender stereotypes is a form of sex discrimination under Title VII.51

After Davis,lower courts have relied on the Supreme Court’s decisions in Price Waterhouse and Oncale to hold that harassment based on gender stereotyping52 or perceived sexual orientation is a form of sex discrimination under Title IX. For example, in Montgomery v. Independent School District,53 where a student alleged that he was harassed by his male peers because they thought he was gay and did not act in a masculine manner, the district court relied on Price Waterhouse and Oncale in concluding that the plaintiff had stated a viable Title IX claim based on gender stereotyping.54 In Ray v. Antioch Unified School District,55 where a student alleged that he was verbally and physically harassed by his male peers because they thought he was gay, the court relied on Oncale in holding that the plaintiff had stated an actionable Title IX claim based on his perceived homosexuality.56

Since Price Waterhouse and Oncale, lower courts and the EEOC have been grappling with whether LGBT employees have cognizable sex discrimination claims under Title VII when sexual-orientation or gender-identity discrimination is also at issue; these bodies now appear to agree that such claims are actionable as a form of gender stereotyping57 and are beginning to conclude that the claims are also actionable as sex discrimination per se.58 As explained in Section II.B.1, courts considering Title IX claims filed by LGBT students similarly agree that the claims are actionable under a gender stereotyping theory, but are divided on whether anti-LGBT animus is sex discrimination per se.

Like the courts, OCR has relied on Title VII precedent when interpreting LGBT students’ rights under Title IX. OCR’s definition of harassment derives from Title VII precedent on gender stereotyping59 and states:

[G]ender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, but not involving conduct of a sexual nature, is also a form of sex discrimination to which a school must respond, if it rises to a level that denies or limits a student’s ability to participate in or benefit from the educational program.60

OCR explained in its 2010 guidance on bullying and harassment that discrimination based on gender stereotyping includes harassment “for failing to conform to stereotypical notions of masculinity and femininity,”61 and covers “all students, regardless of the actual or perceived sexual orientation or gender identity of the harasser or target.”62 OCR has not taken the position that harassment based on perceived sexual orientation is sex discrimination per se under Title IX, but in a Statement of Interest in a private lawsuit in federal court, the U.S. Department of Justice (DOJ) recently argued in support of a transgender student’s Title IX claim that harassment based on gender identity or expression is sex discrimination per se.63 As explained in Section II.B.2, federal agencies have been interpreting the scope of LGBT students’ Title IX rights more broadly in the last several years.

B. Harassment of LGBT Students Based on Gender Stereotypes and Anti-LGBT Animus

Under Title IX, LGBT students, like all other students, have the right to an education free from sex discrimination.64 Harassment based on sexual orientation or gender identity does not immunize school districts from liability under Title IX—even though these traits are not expressly mentioned in the statute.65 Both civil litigation and federal administrative action confirm this.

1. Civil Litigation

Federal courts have delineated two main rationales in finding that peer harassment of LGBT students is actionable sex discrimination under Title IX: the widely accepted gender stereotyping rationale and the currently controversial per se sex discrimination rationale.66

Under the gender stereotyping rationale, courts interpret what appears to be sexual orientation discrimination—such as anti-gay epithets—as actually based on sexist stereotypes about masculinity and femininity. For example, in Riccio, plaintiff Stefanie Andree alleged that students called her derogatory names—including “bitch,” “dyke,” “lesbian,” “gay,” and “lesbian lover[]”—and threw objects at her.67 The defendant school board sought to dismiss Andree’s Title IX claim on summary judgment, arguing that “the thrust of the slurs were of a sexual orientation nature and not gender specific” and “Title IX does not provide a remedy for discrimination based on sexual orientation.”68 The court rejected this argument, holding that “Andree, a female student, targeted by other female students and called a variety of pejorative epithets, including ones implying that she is a female homosexual, has established a genuine issue of fact as to whether this harassment amounts to gender-based discrimination, actionable under Title IX.”69 In reaching this decision, the court relied in part on the following OCR guidance on sexual harassment70:

[G]ender-based harassment, including that predicated on sex-stereotyping, is covered by Title IX if it is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the program. Thus, it can be discrimination on the basis of sex to harass a student on the basis of the victim’s failure to conform to stereotyped notions of masculinity and femininity. . . . We also note that sufficiently serious harassment of a sexual nature remains covered by Title IX . . . even though the hostile environment may also include taunts based on sexual orientation.71

Under the per se sex discrimination rationale, courts treat sexual orientation discrimination claims as straightforward sex discrimination claims under Title IX. For example, in Ray v. Antioch Unified School District, plaintiff Daniel Ray alleged that he was subjected to verbal harassment, threats, and a serious assault based on his peers’ belief that he was gay.72 The defendant school district moved to dismiss Ray’s Title IX claim, arguing that Title IX does not prohibit discrimination based on sexual orientation.73 The court denied the school district’s motion and allowed Ray to proceed with his Title IX claim, stating that “it is reasonable to infer that the basis of the attacks was a perceived belief about Plaintiff’s sexuality, i.e. that Plaintiff was harassed on the basis of sex.”74 The court further explained its reason for viewing Ray’s claim as per se sex discrimination:

[T]he Court finds no material difference between the instance in which a female student is subject to unwelcome sexual comments and advances due to her harasser’s perception that she is a sexual object, and the instance in which a male student is insulted and abused due to his harasser’s perception that he is a homosexual, and therefore a subject of prey. In both instances, the conduct is a heinous response to the harasser’s perception of the victim’s sexuality, and is not distinguishable to this Court.75

Far more courts have addressed Title IX harassment claims filed by gay and lesbian students than those filed by transgender students.76 This is because Title IX bullying cases filed by transgender students are in a nascent stage.77 However, based on Title VII precedent involving transgender employees78 and arguments raised in pending Title IX cases,79 there is good reason to believe that courts will find transgender students have actionable Title IX claims under both gender stereotype and sex discrimination theories.

Given the uniform acceptance of the gender stereotype theory and the growing acceptance of the per se sex discrimination theory,80 Title IX litigation has become a vital tool for helping to address LGBT bullying. Moreover, Title IX’s effectiveness in this area has been bolstered through recent actions by OCR and DOJ.

2. Federal Agency Action

In the Obama Administration, OCR and DOJ have been taking strong steps to combat LGBT bullying. OCR has issued guidance supporting the application of Title IX to bullied LGBT students. In addition, OCR and DOJ have been actively investigating and resolving Title IX administrative complaints by LGBT students, as well as intervening or filing supportive briefs in civil lawsuits filed by LGBT students. These agencies’ actions show that OCR and DOJ accept the gender stereotype rationale for Title IX claims filed by LGBT students, but limit the per se sex discrimination rationale to claims filed by transgender students. Unlike some courts, these agencies have not treated the harassment of gay and lesbian students as per se sex discrimination.

Since 2010, OCR has issued several guidance documents to explain how Title IX applies to gender-based and sexual harassment of LGBT students. In 2010, OCR issued a Dear Colleague Letter (DCL) explaining how the federal anti-discrimination statutes, including Title IX, apply to bullying.81 The DCL includes an example of how a school’s failure to recognize the bullying of a gay student as gender-based harassment would violate Title IX.82 In the example, a gay high school student perceived as effeminate and nontraditional in both his personal grooming and choice of extracurricular activities was taunted with “anti-gay slurs and sexual comments,” and “physically assaulted, threatened, and ridiculed because he did not conform to stereotypical notions of how teenage boys are expected to act and appear.”83 The school in the example violated Title IX because it failed to recognize the bullying as a form of prohibited sex discrimination, and thus did not take effective action to stop the harassment.84

In 2011, OCR issued a DCL that provided additional guidance on Title IX’s application to sexual violence,85 and later issued “Questions and Answers on Title IX and Sexual Violence” (Q&A) explaining, among other things, schools’ obligations to investigate and resolve allegations of sexual violence against LGBT students.86 In the Q&A, OCR affirms that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity,”87 and makes clear that schools are obligated to remedy sexual violence regardless of whether it is “accompanied by anti-gay comments or . . . partly based on a student’s actual or perceived sexual orientation.”88

In 2015, OCR issued a “Title IX Resource Guide” that explains the application of Title IX to various issues, including sex-based harassment.89 This guidance document similarly affirms that a school is obligated to “investigate and resolve allegations of sexual or gender-based harassment of lesbian, gay, bisexual, and transgender students using the same procedures and standards that it uses in all complaints involving sex-based harassment.”90

OCR and DOJ have also taken significant steps to enforce Title IX when schools have failed to take appropriate action to stop gender-based and sexual harassment of LGBT students. For example, OCR investigated the Title IX complaint filed by Seth Walsh’s mother against California’s Tehachapi School District.91 Walsh committed suicide after enduring years of unrelenting bullying and sexual harassment by his school peers that escalated after he came out as gay.92 After investigating the complaint, OCR and DOJ93 concluded that Walsh had been subjected to “persistent, pervasive, and often severe sex-based harassment that resulted in a hostile educational environment of which the [d]istrict had notice,” and that the district violated Title IX by failing “to take steps sufficient to stop the harassment, to prevent its recurrence, or to eliminate the hostile environment.”94 In reaching this conclusion, OCR and DOJ confirmed that Walsh had suffered sex-based harassment because the harassment was “sexual in nature” and “gender-based, motivated by [Walsh’s] failure to act as some of his peers believed a boy should act.”95 They also noted that the use of anti-gay epithets against Walsh often “stemmed from commonly held attitudes and perceptions about gender and masculinity from which also flowed the sexual and other gender-based conduct . . . .”96

OCR and DOJ also investigated Minnesota’s Anoka-Hennepin School District to address allegations of peer harassment of multiple students for nonconformance with traditional gender stereotypes.97 The students reported that they “were constantly harassed (some almost every day for years) because of their failure to conform to gender stereotypes. Female students reported being called ‘manly,’ ‘guy,’ or ‘he-she’; male students reported being called ‘girl,’ and ‘gay boy,’ and being told, ‘you’re a guy, act like it.’”98 Some students reported being “threatened and subjected to physical assaults because of their nonconformity to gender stereotypes.”99 While DOJ and OCR were investigating the matter, six students filed a private lawsuit against the school district based on the same allegations, and both federal agencies intervened against the district.100 After “extensive negotiations,” the parties entered into a consent decree that required the school district to make significant changes to its policies, practices, and procedures101 and pay $270,000 in damages to the six plaintiffs.102

DOJ and OCR have also sought to intervene or submit amicus briefs in other cases filed by LGBT or perceived-LGBT students against school districts that inadequately addressed gender-based harassment by the plaintiffs’ peers.103 Recently, the United States has taken promising action to protect the rights of bullied transgender students and make clear that these students have claims for gender stereotyping and per se sex discrimination under Title IX.104 For example, in Tooley v. Van Buren Public Schools,105 the United States filed a Statement of Interest in support of a fourteen-year-old transgender boy harassed by his peers and school officials based on his nonconformity to sex stereotypes, his gender identity, and his transgender status.106 It did so to clarify the legal standards “governing sex discrimination claims under Title IX and the Equal Protection Clause.”107 In that brief, DOJ and OCR argued that transgender students may assert a claim under Title IX based on sex stereotyping, as well as a straightforward sex discrimination claim based on their gender identity or transgender status.108

C. The Impact of Title IX on LGBT Students

Civil litigation and administrative enforcement show that Title IX has developed into a vital tool for addressing the bullying experienced by LGBT students. In combination, public and private litigation against school districts that were the subject of bullying victims’ complaints have resulted in agreements to make sweeping reforms,109 held the districts accountable by forcing them to compensate victims for the serious physical, psychological, and emotional toll of bullying,110 and created favorable precedent that will help future victims and deter schools from future violations.111

Although significant financial awards and settlements in civil litigation (often when coupled with bad publicity for a school district) can deter schools from turning a blind eye to harassment of LGBT students and lead to broader change,112 lawsuits generally have a greater impact when they also seek injunctive relief.113 This is because injunctive relief, whether by judgment or settlement, allows bullied LGBT students to obtain broad reforms that can change the climate in their schools. For example, these reforms may include new anti-bullying policies; mandatory training and education for all district employees and students; tracking, reporting, and investigations of all anti-LGBT harassment; annual anti-bullying surveys; a properly trained Title IX coordinator; counseling for victims and perpetrators; and oversight by OCR.114 Civil suits seeking these broad reforms tend to be filed by the United States or civil rights groups,115 but private attorneys can (and should) seek injunctive relief in Title IX lawsuits.116

Administrative enforcement of Title IX, particularly in the Obama Administration, is also leading to systemic change in the ways that schools address and respond to anti-LGBT bullying. OCR’s active enforcement of Title IX in response to complaints about LGBT harassment has resulted in resolutions that require school districts to institute the injunctive-type reforms described above.117

Though civil litigation and administrative enforcement of Title IX are vital tools that are making a difference in the lives of LGBT students, they cannot remedy LGBT harassment on their own.118

III. limits on title ix’s effectiveness and needed reforms

Title IX’s effectiveness in addressing anti-LGBT bullying is limited by two key deficiencies: (1) courts and OCR interpret Title IX’s prohibition against sex discrimination too narrowly; and (2) Title IX does not expressly prohibit discrimination on the basis of sexual orientation or gender identity.119 Furthermore, even if courts, OCR, and Congress corrected these deficiencies, a solution to anti-LGBT bullying requires action beyond Title IX litigation and administrative enforcement. LGBT students are more likely to enjoy equal access to educational opportunities when school policies explicitly prohibit harassment of students based on their actual or perceived sexual orientation and gender identity.120 In addition, training and education for school staff and students would likely further improve the identification of, prevention of, and response to such harassment.121

A. Courts and OCR Should Interpret Title IX More Broadly

Title IX would provide more consistent protection to LGBT students if courts and OCR read its prohibition against sex discrimination more broadly. Courts and OCR are interpreting Title IX too narrowly in two main ways. First, they limit application of the gender stereotyping theory to stereotypes about overt masculine or feminine behavior.122 Second, OCR and some courts fail to treat sexual orientation discrimination as per se sex discrimination.123 Furthermore, although courts are just beginning to address Title IX claims of transgender students, courts should similarly permit them as per se sex discrimination claims.124

1. LGBT Bullying Involves Stereotypes Beyond Overt Masculinity or Femininity

It is widely accepted that bullied LGBT students may assert Title IX claims based on a theory of gender stereotyping.125 But, as explained below, the protections afforded LGBT students under this theory are too narrow because they are currently premised only on gender norms about how boys and girls should look and act,126 ignoring other gender norms about sexuality and the appropriate relationships between girls and boys. If courts and OCR considered the full range of relevant gender norms, bullied LGBT students would enjoy more consistent protection under Title IX. It would then be clear that Title IX always applies to the harassment of LGBT students because such harassment necessarily involves a form of gender stereotyping.

In Price Waterhouse v. Hopkins, the Supreme Court stated that Congress intended Title VII to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”127 As some courts have explained in Title VII cases, discrimination against LGBT individuals on the basis of gender stereotypes “often involves far more than assumptions about overt masculine or feminine behavior.”128 As the court explained in Centola v. Potter:

[S]tereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women. While one paradigmatic form of stereotyping occurs when co-workers single out an effeminate man for scorn, in fact, the issue is far more complex. The harasser may discriminate against an openly gay co-worker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, “real men don’t date men.” The gender stereotype at work here is that “real” men should date women, and not other men. Conceivably, a plaintiff who is perceived by his harassers as stereotypically masculine in every way except for his actual or perceived sexual orientation could maintain a Title VII cause of action alleging sexual harassment because of his sex due to his failure to conform with sexual stereotypes about what “real” men do or don’t do.129

This reasoning applies equally to gay and lesbian students, many of whom are harassed simply because they are attracted to others of the same sex.

In Videckis v. Pepperdine University,130a Title IX case filed by two lesbian student-athletes, the district court relied on Centola in finding that the sexual orientation discrimination the plaintiffs alleged fit “under the broader umbrella of gender stereotype discrimination.”131 The court reasoned that “[s]tereotypes about lesbianism, and sexuality in general, stem from a person’s views about the proper roles of men and women—and the relationships between them.”132 The court concluded that the plaintiffs had stated an actionable claim under Title IX based on their perceived failure to conform to these stereotypes.133

In short, harassment of LGBT students is necessarily a form of impermissible gender stereotyping because it is based on the premise that same-sex attraction (or gender expression that does not match one’s sex assigned at birth) is an inappropriate expression of one’s gender.

Most courts (and OCR) fail to analyze the stereotypes imposed on LGBT students in this straightforward way.134 In fact, most courts either interpret gender stereotypes as limited to assumptions about how girls and boys are supposed to look and act, or attempt to distinguish peer harassment based on those stereotypes from harassment based on sexual orientation.135 The justification for such parsing is that Title IX does not prohibit discrimination on the basis of sexual orientation.136 As a result, courts typically analyze these claims by distinguishing between sexual orientation discrimination and sex discrimination while noting that “the line between [the two] can be difficult to draw.”137 I argue that there is no line to draw. As the court in Videckis stated, “the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.”138 If courts and OCR interpreted Title IX in this manner, then bullied LGBT students would always have a Title IX claim based on gender stereotyping.139

If courts and OCR interpreted Title IX’s prohibition against sex discrimination to include the full range of gender stereotypes, Title IX would address LGBT bullying more effectively. LGBT students would not have to parse facts showing harassment based on nonconformity with stereotypes of masculinity and femininity, as distinguished from nonconformity with sex stereotypes about to whom they should be attracted (or with which gender they should identify). The “entire spectrum” of gender stereotypes would constitute sex discrimination under Title IX, consistent with Price Waterhouse’s broad description of unlawful gender stereotypes under Title VII.140

2. LGBT Bullying Is Per Se Sex Discrimination

Title IX would also provide more consistent protection to LGBT students if OCR and courts recognized that harassment based on sexual orientation or gender identity is necessarily discrimination “on the basis of sex” under Title IX. Courts are divided on this issue.141 OCR seems to split the baby, accepting that transgender students have per se sex discrimination claims under Title IX, but limiting gay and lesbian students to gender stereotyping claims.142 However, as this section explains, there are strong reasons for treating peer harassment of LGBT students as per se sex discrimination covered by Title IX.

The EEOC recently held in Baldwin v. Foxx that sexual orientation discrimination is covered under Title VII, explaining that “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”143 The EEOC concluded that “[a]n employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”144 The EEOC further explained that:

“Sexual orientation” as a concept cannot be defined or understood without reference to sex. A man is referred to as “gay” if he is physically and/or emotionally attracted to other men. A woman is referred to as “lesbian” if she is physically and/or emotionally attracted to other women. Someone is referred to as “heterosexual” or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite sex. It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations.145

This reasoning applies equally to Title IX claims filed by LGBT students; in fact, the court in Videckis relied on this rationale in concluding that the plaintiff student-athletes targeted by their school for being lesbians stated a “straightforward claim of sex discrimination under Title IX.”146

Although courts have not yet ruled on Title IX peer harassment claims by transgender students, they should similarly treat these as sex discrimination claims, based on analogous Title VII precedent.147 This is precisely what the United States did in Tooley, arguing that an individual’s gender identity is an aspect of an individual’s sex, and, therefore, “discrimination on the basis of gender identity is, ‘literally,’ discrimination on the basis of sex . . . .”148 This argument was based in part on Schroer v. Billington, a Title VII case involving a transgender employee who had initially been offered a job after interviewing as male but had her offer revoked after disclosing that she was transitioning to female.149 The court offered the following analogy to explain why the employer’s conduct constituted per se sex discrimination:

Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.” No court would take seriously the notion that “converts” are not covered by [Title VII]. Discrimination “because of religion” easily encompasses discrimination because of a change of religion.150

Similarly, discrimination based on changing one’s assigned sex at birth is discrimination on the basis of sex, and focusing on a “label” like transgender to justify denying that person protection under laws prohibiting sex discrimination would be “blind” to the “statutory language itself.”151 Thus, courts should recognize that harassment of transgender students is actionable sex discrimination under Title IX.152

The fact that Congress did not envision the application of Title IX to LGBT students is of no consequence. As the Court stated in Oncale v. Sundowner Offshore Services, Inc. when holding that same-sex sexual harassment is covered under Title VII, “statutory prohibitions often go beyond the principal evil [they were enacted to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”153 If courts considered the full spectrum of gender stereotypes when addressing LGBT students’ Title IX claims and/or recognized that harassment of LGBT students is per se sex discrimination, Title IX would address peer bullying of LGBT students far more effectively. Indeed, if courts consistently allowed bullied LGBT students to assert Title IX claims based on a failure to conform to gender stereotypes about the “proper” roles of girls and boys and the relationships between them, courts would likely recognize that these students also have a straightforward sex discrimination claim under Title IX. The artifice of parsing between allegations of anti-LGBT animus and sex discrimination—and dismissing cases based on the former—would end.

B. Congress Should Amend Title IX or Pass New Legislation Prohibiting Discrimination Against LGBT Students

Though bullied LGBT students would benefit from broader judicial interpretations of Title IX, Congress should take parallel steps to protect LGBT students. It can do this by amending Title IX to include a prohibition against discrimination on the basis of actual or perceived sexual orientation or gender identity, or by passing new legislation that includes this prohibition. If Congress does not amend Title IX as suggested, it could pass one or both of two alternative bills to address the problem: the Student Non-Discrimination Act of 2015154 and the Safe Schools Improvement Act of 2015.155

The Student Non-Discrimination Act is modeled on Title IX, but would explicitly protect LGBT students:

No student shall, on the basis of actual or perceived sexual orientation or gender identity of such individual or of a person with whom the student associates or has associated, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.156

The Safe Schools Improvement Act would address bullying and harassment in K-12 public schools by, among other things, requiring local education agencies to adopt policies that expressly prohibit bullying and harassment based on a student’s actual or perceived sexual orientation or gender identity, and requiring those agencies and states to collect and report data on incidents of such bullying and harassment.157

If Congress passed either bill, LGBT students would have clearer, more secure protection against harassment. Not only would it be clear to schools that discrimination against LGBT students violates federal law and school policies, but these laws could make it easier for bullied LGBT students to obtain redress. For example, under the Student Non-Discrimination Act, bullied LGBT students would no longer have to convince a court that they were subjected to gender-based stereotyping—rather than harassment based on sexual orientation or gender identity—or that there is no real distinction between the two.158 A congressional enactment would also offer immediate uniformity that is difficult to accomplish through judicial reform.159

A law that expressly prohibits discrimination against LGBT students is important, both so schools clearly understand their legal duties and so LGBT students clearly understand their legal protections.160 The Supreme Court explained the importance of clear anti-discrimination laws in Romer v. Evans, when it found an equal protection violation in a Colorado law that singled out sexual orientation as a class not entitled to protection under anti-discrimination laws: “[e]numeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply.”161 By explicitly prohibiting discrimination based on actual or perceived sexual orientation or gender identity, Congress would send a strong message to school officials, parents, and students—including LGBT students themselves—that harassment on the basis of sexual orientation or gender identity is not permitted in schools.162 As some commentators have argued, enumeration may help reduce harassment of LGBT students and make them feel safer in reporting harassment when it occurred.163 Expressly prohibiting discrimination against LGBT students would also reflect and reinforce the increasing public acceptance of equal rights for LGBT persons.164

C. School Policy and Training Reforms Are Needed

To reduce anti-LGBT bullying, we need action beyond Title IX litigation and enforcement. School policies that expressly prohibit harassment based on actual or perceived sexual orientation, gender identity, and gender expression are a vital part of the solution. In addition, training and education programs are needed to ensure that these policies are effectively implemented and enforced.

Empirical data collected by GLSEN on school anti-bullying policies throughout the country consistently show that policies that enumerate protections for LGBT students have a positive effect on school climate, significantly reducing victimization of LGBT students and increasing the effectiveness of a school’s response when harassment occurs in districts with such policies.165 But many schools do not have such policies.166 Mandatory professional development for educators and district accountability for incident reporting that explicitly includes these protected characteristics should also help.167 Policies are meaningless if they are not implemented and enforced. Part of improving the school climate for LGBT students involves making sure that everyone within the school environment understands what constitutes anti-LGBT bullying and the consequences for such conduct, and that they are trained to deal with bullying incidents when they occur.168 Implementing LGBT-inclusive policies and training and education programs that specifically address anti-LGBT bullying will likely play a key role in reducing harassment and improving the educational environment for LGBT students.169

Conclusion

LGBT students are beginning to benefit from cultural shifts in the national consciousness about school bullying and the targeting of LGBT individuals for unequal treatment. Now that these issues are generally regarded as serious problems, we are seeing more action to solve them. However, LGBT students continue to experience bullying at dramatically higher rates than other students, and Title IX has emerged as an important part of the remedy. Many courts allow bullied LGBT students to assert Title IX claims, and the Obama Administration is taking an active role in protecting LGBT students’ Title IX rights to an education free from sex discrimination. Title IX litigation and enforcement is thus more frequently resulting in broad reforms designed to improve the educational climate. As a result, schools are increasingly held accountable for their roles in creating or allowing a hostile educational environment for LGBT students. Although Title IX is a critical piece of the solution, it is not a silver bullet. Even if courts and OCR were to interpret Title IX’s prohibition against sex discrimination as broadly as advocated here, LGBT bullying would not disappear. There is no single cure-all for LGBT bullying. This is a problem that requires action in our homes, schools, communities, states, and federal government. As the national initiative on solving campus sexual assault says, “It’s On Us” to solve it. 170
Source: www.yalelawjournal.org/article/title-ix-an-imperfect-but-vital-tool-to-stop-bullying-of-lgbt-students

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Who Is Weaponizing Religious Liberty?

In 2016, for the second year in a row, more than 100 anti-equality bills targeting LGBT people were introduced in state legislatures, many of them described as measures to protect religious liberty. This flood of anti-LGBT and “religious liberty” legislation is not the result of isolated local efforts. It is part of a larger campaign by Religious Right groups to resist and reverse advances toward equality for LGBT Americans by portraying equality as inherently incompatible with religious freedom. That effort began well before the U.S. Supreme Court’s 2015 marriage equality ruling, but it has kicked into overdrive since.

Religious Right organizations have long equated criticism with persecution, and portrayed legal and political defeats as attacks on Christianity and religious freedom. Efforts to frame opposition to reproductive choice and LGBT equality as religious liberty issues picked up steam with the issuing of the Manhattan Declaration in 2009. This manifesto, co-authored by right-wing Catholic intellectual Robert George, pledged that its signers would refuse to “bend” to “any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.” Since then, Religious Right groups, their allies at the U.S. Conference of Catholic Bishops, and allied politicians have increasingly framed their opposition to marriage equality, nondiscrimination laws, reproductive choice, and the contraception coverage requirement under the Affordable Care Act as questions of religious liberty.

Included in the recent anti-equality wave are various types of legislation, including state-level Religious Freedom Restoration Acts (RFRAs), modeled to different degrees on the federal law of the same name; so-called Government Nondiscrimination Acts (GNDAs), which do away with the federal RFRA’s balancing tests to give special legal protection to discrimination based on anti-equality religious beliefs; and anti-LGBT laws that don’t explicitly fly under the religious liberty banner, like bills barring transgender people from using the public bathrooms appropriate for their gender identity.

Some of those bills have been defeated, thanks to mobilization by equality advocates and their allies in progressive, religious, and business communities. Others have been approved by state legislatures but vetoed by governors, including Republican Gov. Nathan Deal of Georgia and Democratic Gov. Terry McAuliffe of Virginia. Still others have been signed into law, including Mississippi’s “religious liberty” law and North Carolina’s now notorious HB2, a law overturning local nondiscrimination ordinances and banning transgender people from using public restrooms that match their gender identity. Inflammatory rhetoric about transgender people has fed an increasingly ugly climate in which states and localities are literally making it a crime for a transgender person to go to the bathroom.

All of these approaches are being promoted by a network of national Religious Right organizations that oppose legal recognition for the rights of LGBT people. These organizations are part of a larger infrastructure of colleges and law schools, think tanks, media outlets, and advocacy groups that has been built over the last few decades. They work together to promote the false and destructive idea that legal equality for LGBT Americans is incompatible with religious freedom for those who oppose it — just as early civil rights opponents claimed that eliminating enforced racial segregation was an attack on southern white Christians’ religious beliefs.

This network of anti-equality groups is engaged in a high-stakes effort to convince Americans that preserving religious liberty requires giving individuals and corporations the power to disobey laws that promote the common good and protect other constitutional principles like equal treatment under the law.

Together these organizations constitute a powerful cultural and political force that will not disappear after a few losses in the courtroom or at the ballot box. Indeed, in the wake of their marriage equality defeat at the U.S. Supreme Court in 2015, they have redoubled their efforts. They are eagerly creating folk heroes out of public officials and business owners who refuse to provide services to same-sex couples. And they are pushing Republican officials to enact legislation at federal as well as state levels that would further weaponize religious liberty, turning it from a shield meant to protect individual religious practice into a sword to be wielded against individuals and groups disfavored by Religious Right leaders.

Some of the key players in the current movement to turn religious liberty from a universally cherished American ideal into a weapon of discrimination:

Family Research Council and FRC Action

The Washington, D.C.-based Family Research Council and its political affiliate, FRC Action, are among the most visible anti-gay Religious Right groups promoting the ideology that LGBT equality and religious liberty are incompatible. (Notably, FRC’s concern for religious liberty is specific to Christians who share their political agenda.) FRC hosts the Religious Right’s largest annual political gathering, the Values Voter Summit.

In an urgent email in December, FRC warned its supporters that “sexual radicals” have “declared war on your values. Your family. Your religious beliefs and freedom.” FRC has publicly taken credit for so-called state Government Nondiscrimination Laws that it says meet “the need for comprehensive state legislation that protects businesses, public employees, private employees, religious and secular nonprofits from the waves of politically correct attacks.”

FRC has created model legislation that would accomplish exactly that: a “Government Nondiscrimination Act” that can be customized to every state. After the Supreme Court’s ruling this summer, the pressure to approve of same-sex marriage is bearing down on every Christian. The Government Nondiscrimination Act would bar state governments from penalizing individuals and entities for their moral or religious beliefs that marriage is the union of one man and one woman.

In FRC’s words, the Government Nondiscrimination Act “prohibits the state government from penalizing individuals and entities for their moral or religious beliefs that marriage is the union of one man and one woman” while also protecting “individuals and entities who believe that sexual relationships are properly reserved for such marriages” and those who believe “that ‘man’ and ‘woman’ are biologically based.”

The Government Nondiscrimination Act is focused on preventing government discrimination. Our government should never discriminate against, punish, or penalize people based on their sincerely held belief that marriage is the union of one man and one woman. Like the First Amendment Defense Act at the federal level, states need to pass legislation now to protect individuals and entities from state discrimination on the basis of their beliefs in natural marriage.

FRC has backed versions of GNDA introduced at the state level. See, for example, a February action alert regarding Government Nondiscrimination Act legislation in South Dakota. FRC President Tony Perkins said Mississippi’s recent legislation “should be a model for every state.” The Mississippi law does not protect religious liberty in general, but it says government cannot punish business owners for actions based on a specific set of religious or moral beliefs: that marriage is between a man and a woman; that sex is OK only in the context of such a marriage; and that gender is fixed at birth. FRC Action said that the Mississippi law “essentially reaffirmed the First Amendment” and claimed that LGBT activists are upset because the law provides “a level playing field” when what they want is “forced acceptance.”

FRC bragged that an April 25 rally defending North Carolina’s law was organized in part by “one of FRC’s Watchmen Pastors.” FRC has circulated petitions targeting “bathroom bullies” and “big business bullies.”

Perkins and FRC Senior Vice President Rob Schwarzwalder both criticized the U.S. Department of Justice for filing suit against North Carolina over its bathroom ban, with Schwarzwalder calling it “essentially fascistic” and Perkins demanding that Republicans in Congress “bring the imperial White House under control.”

FRC’s track record of anti-gay extremism, which includes defending Uganda’s notorious Anti-Homosexuality Act, has earned it an anti-gay hate group label from the Southern Poverty Law Center. Perkins has said that equality-affirming Christians don’t deserve the same religious liberty protections as anti-gay Christians. And FRC spokesperson Peter Sprigg recently said that “un-American” LGBT activists are out to “punish” those with “traditional” (i.e., anti-gay) views “to wipe those views out of existence.”

FRC reported a 2013 income of $14.6 million, with an additional $2.6 million for FRC Action.

Heritage Foundation and Heritage Action.

The Heritage Foundation and its political arm, Heritage Action, are a massive presence in the right-wing movement, with a combined income in 2013 of more than $120 million. A major force in the marketing of right-wing policy ideas since the Reagan administration, Heritage has in recent years increasingly used its muscle to push Republican lawmakers to adhere to the group’s demands for ideological purity. To get an idea just how far to the right Heritage is attempting to push the GOP, consider that the current Republican House member gets on average only a 63 percent score on Heritage Action’s scorecard; Republican senators currently average just 61 percent.

A recent email message from Heritage Action began by declaring, “Religious freedom is under attack in our country.” The email encourages conservative activists to demand that Republican members of the House of Representatives pass the so-called First Amendment Defense Act, a federal version of the state Government Nondiscrimination Acts.

Heritage is home to Ryan Anderson, a protégé of Manhattan Declaration author and National Organization for Marriage co-founder Robert George. Anderson has become one of the most energetic and visible opponents of marriage equality and nondiscrimination protections for LGBT people and same-sex couples. After the Supreme Court’s marriage equality ruling, Anderson rushed out a book promoting a long-term campaign plan for opponents of marriage equality. It includes these steps:

• Identify the Court’s decision as illegitimate judicial activism.
• Act to protect the rights of “conscience.”
• Wage a long-term campaign of “rebuilding a truthful, strong marriage culture” to “bear witness to the truth” within a culture that has been told a lie, in this case about the nature of marriage. This will be a long-term, “generational” effort, “something our children and grandchildren will be responding to.”

The Religious Right and its allies, including Republican presidential candidates, have seemingly embraced Anderson’s game plan. They have repeatedly denounced the Supreme Court ruling as illegitimate.

And, of course, the Religious Right is aggressively promoting the effort to give anti-LGBT discrimination special legal protection in the name of protecting religious liberty and freedom of conscience. Anderson slammed Georgia Gov. Nathan Deal for having “caved to pressure” from the business community when he vetoed the so-called Free Exercise Protection Act, a version of the Religious Right’s protection-for-discrimination bills. Heritage is urging North Carolina legislators to defend their “bathroom privacy law” from the intense criticism it has generated. Heritage has also criticized North Carolina’s Gov. Pat McCrory for an executive order giving state employees protection against discrimination on the basis of sexual orientation and gender identity.

Roger Severino, director of Heritage’s DeVos Center for Religion and Civil Society, slammed the U.S. Department of Justice’s lawsuit against North Carolina over HB2 as politics, “raw ideology,” and abuse of power:

These developments prove that same-sex marriage was merely the start, not end, of the left’s LGBT agenda. The radical left is using government power to coerce everyone, including children, into pledging allegiance to a radical new gender ideology over and above their right to privacy, safety, and religious freedom.

In November, Anderson took a break from his anti-marriage-equality work to attack the proposed federal Equality Act, which would add sexual orientation and gender identity to federal civil rights protections. Anderson said it “unnecessarily and unjustly violates freedom by creating special privileges based on sexual orientation and gender identity.”

Heritage is a sponsor of the annual Values Voter Summit, the Religious Right’s largest political gathering, at which Heritage has frequently tried to discredit libertarians by arguing that it is impossible to be a real fiscal conservative without embracing the Religious Right’s views on the “traditional family.”

National Organization for Marriage

The National Organization for Marriage has been shrinking since its heyday a few years ago when it was pushing anti-equality laws and constitutional amendments around the country. But NOM and its president, Brian Brown, are still a visible presence backing anti-gay “religious liberty” legislation.

Brown has promoted a plan of action for the movement that is similar to Ryan Anderson’s road map, and NOM has been mobilizing its activists to contact lawmakers and governors on behalf of “religious liberty” legislation at the state level as well as the First Amendment Defense Act.

Brown disparages supporters of LGBT equality as “extremists who believe that religious liberty must be eliminated when it comes to the gay agenda.” NOM cheered Mississippi Gov. Phil Bryant’s signature on that state’s law as a “huge victory” over “LGBT extremists who want to marginalize and punish Christians and other people of faith simply for professing the truth of marriage as God designed it, one man and one woman.” NOM called North Carolina’s law a “tremendous victory” and disparaged governors who have rejected such legislation as “gutless.”

Brown has recently vowed that NOM will “unseat” three Republican Missouri state representatives who did not support SJR 39, preventing a proposed constitutional amendment from moving forward in the state House. If the amendment had been approved by the House and then by the state’s voters, it would have enshrined protections for anti-LGBT discrimination in the state’s constitution.

These lawmakers have sided with LGBT extremists and voted against the right of Missouri voters to consider needed religious liberty provisions protecting people of faith from being forced to participate in a same-sex “wedding” despite their deeply held religious objections. As we have done elsewhere, we will do everything in our power to end the political careers of these gutless politicians.

Brown also uses right-wing terminology to trivialize the interests of transgender Americans by saying that “gender ideology” would “allow men to force their way into intimate facilities reserved for girls and women, including showers and restrooms, simply by claiming they ‘identify’ as women.”

Brown has joined a global war being waged against the lives and rights of LGBT people, teaming up with anti-marriage-equality activists in France and traveling to Russia to support anti-gay legislation there. Brown will be joining other anti-gay activists at this year’s World Congress of Families summit in the Republic of Georgia. At last year’s World Congress of Families, Brown said the Supreme Court’s marriage equality ruling had “put a lie into the law” and told activists, “God has put us here for some reason. This fight is not over. It has just begun.”

Alliance Defending Freedom (to hate)

The Alliance Defending Freedom, formerly known as the Alliance Defense Fund, is the largest Religious Right legal organization, which Think Progress has called “the 800-pound gorilla of the Christian Right.” ADF provides the anti-gay movement with legal muscle through its fundraising prowess (it reported $44 million in income in 2013), staff, and network of thousands of volunteer attorneys. ADF has been spreading its anti-choice and anti-equality influence internationally while playing a major role in the resistance to LGBT equality in the U.S.

Senior Counsel Kevin Theriot declared five years ago on ADF’s blog that “claiming a legal right to engage in homosexual behavior comes at the cost of religious freedom.” ADF worked with the Center for Arizona Policy to write Arizona’s SB 1062, one of the first in the recent wave of “religious liberty” laws targeting LGBT communities. ADF is active at the state level, for example testifying on behalf of a Government Nondiscrimination Bill in South Dakota and appearing with Kansas Gov. Sam Brownback at a “religious liberty” rally in February.

In 2014, ADF manufactured a controversy by claiming that the owners of a commercial wedding chapel in Idaho, who had previously conducted Christian, other religious, and nonreligious ceremonies and weddings, were about to be thrown in jail for refusing to marry gay couples. As noted in People For the American Way’s “Religious Liberty: Sword or Shield” report, “The supposed threat to religious freedom evaporated under closer scrutiny — the owners had never been ordered to conduct weddings for same-sex couples, and had reincorporated as a religious corporation that was not even subject to the law they were complaining about.”

ADF’s Greg Scott praised the raft of so-called religious liberty bills at the state level this year, saying, “Lawmakers have stepped up to shore up freedoms we have always had as Americans, because they understand those freedoms are at risk.”

ADF praised Mississippi Gov. Phil Bryant for signing the state’s new religious liberty law, which grants legal exemptions to people who have religious beliefs about marriage, nonmarital sex, and gender. ADF called the legislation a “commonsense bill” that “affirms the freedom of all people to peacefully live and work according to their deeply held beliefs.” Its headline touted the law’s protection of Mississippians’ freedom to “live and let live.”

“We commend the governor for signing into law protections for schools, churches, businesses, and public employees so that they won’t face government discrimination,” said ADF Legal Counsel Kellie Fiedorek. “After all, you’re not free if your beliefs are confined to your mind. What makes America unique is our freedom to peacefully live out those beliefs, and the Constitution protects that freedom.”

ADF attorneys represent a number of business owners who have run into trouble for violating anti-discrimination laws. ADF attorneys appeared in Rick Santorum’s religious persecution movie “One Generation Away: The Erosion of Religious Liberty.”

Mother Jones recently reported that ADF “appears to be particularly influential when it comes to putting bathroom bills on the agenda,” affirming earlier reporting by Media Matters. ADF promotes model anti-transgender “Student Physical Privacy” policies to school districts and offers free legal representation to any school district that faces a legal challenge for blocking transgender students from bathrooms. It also promotes model legislation whose language has shown up in bills in Kansas, North Carolina, Nevada, Minnesota, and Texas. The Family Policy Alliance, the political arm of Focus on the Family, said in a press release about Mississippi’s new law that their “friends at Alliance Defending Freedom wrote model legislation for the bill.”

ADF supported criminal sodomy laws in the U.S. before they were overturned by the Supreme Court in 2003, and works to defend laws in other countries that criminalize homosexuality. ADF also supported anti-marriage state constitutional amendments before the Supreme Court’s marriage equality ruling. ADF worked on Arizona’s SB 1062, in what was the first major battle of the recent wave of state-level “religious liberty” laws.

In 2007, ADF attorney Mike Johnson said the group would oppose the Employment Non-Discrimination Act (ENDA), the proposed federal law that would ban discrimination in employment based on LGBT status, even with broad religious exemptions, calling the bill an “effort to silence people of faith” and an attack on free speech, religious liberty, and freedom of conscience. ADF President Alan Sears called ENDA “a dangerous, blatantly unconstitutional bill that would pit the government directly against the free exercise of religion.”

Sears co-authored the 2003 book “The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today.” In it he professes compassion for those who are “ensnared” in the “deadly grip” of “homosexual behavior” while portraying the gay-rights movement as an enemy of religious freedom. The book warned that hate crime laws would lead to the censoring of churches and opposed a law against anti-gay discrimination in the workplace, even with religious exemptions. It said that Christians who support or are ambivalent about such legislation are “signing a death warrant for religious liberty.”

Liberty Counsel

Liberty Counsel is a Religious Right legal group run by Mat Staver, former dean of Liberty University’s law school, and his wife, Anita. Anita recently announced that she would start carrying her Glock .45 into the bathroom in response to Target saying it would not discriminate against transgender customers. Liberty Counsel is also the former home of Matt Barber, the viciously anti-gay pundit who now runs a right-wing propaganda site, BarbWire. Mat Staver once compared pro-equality Republicans and those who don’t share social conservatives’ priorities to cockroaches.

CBS News reported recently that Liberty Counsel-affiliated attorneys in all 50 states are “advising lawmakers and defending clients in what they believe to be the great cultural clash of our time.” Staver is also defending Alabama Chief Justice Roy Moore against ethical complaints over his push to get other Alabama officials to essentially nullify federal court rulings on marriage equality.

Liberty Counsel has represented Rowan County, Kentucky, clerk Kim Davis, who refused to allow her staff to process marriage license applications after the Supreme Court’s marriage equality ruling, and the group actively promotes legislation that would give special legal rights to business owners and others who discriminate against LGBT people and same-sex couples on purported religious liberty grounds. Liberty Counsel recently worked with other anti-gay activists to devise a policy meant to make it impossible for a Gay-Straight Alliance club to function in a Tennessee high school.

In April, Liberty Counsel offered to defend Missouri’s Religious Freedom bill (SJR 39) if it became law; the bill died in a House committee after passing the Senate over a heroic filibuster by the chamber’s outnumbered Democrats. Staver praised the “Pastor Protection Act” signed by Florida Gov. Rick Scott in March, while calling for broader legislation to empower others to resist the “LGBT agenda.” Said Staver, “This assault on marriage is really an attempt to obliterate Judeo-Christian morality, to destroy marriage and family, and is an attack on God who created male and female.” Also in March, Liberty Counsel asked a federal court for permission to intervene in a lawsuit brought by the ACLU against a North Carolina law that allows magistrates to refuse to grant marriage licenses to same-sex couples.

Liberty Counsel is an aggressively anti-gay organization, praising repressive anti-gay legislation in other countries and arguing that it is immoral for the U.S. government to encourage other countries to decriminalize homosexuality. Liberty Counsel also represents the rabidly anti-gay activist Scott Lively, who has campaigned against legal equality for LGBT people in the U.S. and around the globe. Lively recently said that the acceptance of homosexuality within the church is a “dress rehearsal” for the End Times.

Liberty Counsel hosts an annual gathering for Religious Right political activists called the Awakening. Threats to religious liberty from the LGBT rights movement were a major theme at this year’s conference, at which FRC Vice President Jerry Boykin said, “But I will tell you what, the first man that walks in my daughter’s bathroom, he ain’t going to have to worry about surgery. That’s not right. That is not right. It’s not right. It’s ungodly. But it’s also just unnatural. This is crazy. Where are the Christians that are standing up?”

The Florida-based Liberty Counsel, which reported income of $5.6 million in 2014, has a presence in Washington, D.C., through the Liberty Center for Law & Policy, a partnership between Liberty Counsel and Liberty University, which calls itself the world’s largest Christian university. In 2012, Liberty Counsel became the legislative and policy arm of the anti-equality National Hispanic Christian Leadership Conference; Staver serves as NHCLC’s chief legal counsel.

American Family Association

The American Family Association is one of the oldest and largest Religious Right groups, reporting income of more than $28 million in 2013. The AFA owns a radio network, which is currently pushing people to cancel their PayPal accounts over the company’s dissent from North Carolina’s anti-LGBT law, and the OneNewsNow online “news” service. It also cosponsors Family Research Council’s annual Values Voter Summit. When asked why there has been so much criticism of North Carolina’s recent bathroom-and-nondiscrimination ban, the group’s national field director blamed Satan.

Bryan Fischer, who no longer has the title of spokesperson for the group but still has the platform of a show on its radio network, is among the most vehemently anti-gay (as well as anti-Muslim) figures in right-wing media. He recently declared that Martin Luther King, Jr. would be “ecstatic” with Mississippi’s new law protecting anti-LGBT discrimination. (AFA spokesperson Buddy Smith called the law a “freedom of conscience bill.”) Fischer said Tennessee’s Republican Gov. Bill Haslam was “doing the devil’s work” when he vetoed legislation to make the Bible the state’s official book. Fischer is fond of declaring that those who disagree with him, including evangelicals who supported Donald Trump over Ted Cruz, are empowering demonic forces.

Another AFA radio host, Sandy Rios, recently criticized state officials who responded to anti-gay legislation in North Carolina and Mississippi by curtailing official travel to those states; she said the LGBT equality movement is a “fascist movement in our country, and the fascism is against people who have, primarily, Christian values.”

The AFA, which has a long record of launching boycotts against companies that it believes are taking the side of pro-gay forces in the culture war, is leading an attack on Target after the company announced that it would not discriminate against transgender people using its bathrooms.

The AFA also served as an incubator for Christian-nation activist David Lane’s American Renewal Project and his Pastors and Pews events, which have served as opportunities for matchmaking between politically engaged conservative pastors and Republican politicians. He has also organized a series of political prayer rallies featuring Republican governors.

Becket Fund for Religious Liberty

The Becket Fund, dubbed “God’s Rottweilers” in a 2014 Politico story, is a $5 million law firm that focuses on religious liberty issues. Unlike some other Religious Right legal groups, Becket does invest resources protecting the rights of religious minorities, like a Muslim prisoner who petitioned for the right to grow a beard.

But Becket is also a big player in the religious liberty litigation culture wars. Becket’s board includes the Family Research Council’s Kenneth Blackwell, Religious Right mega-funder Sean Fieler, and Robert George, an architect of the Religious Right’s “religious liberty” strategy. Back in 2007, a Becket attorney warned that marriage equality would lead to “widespread legal confusion resulting in pervasive church-state conflict and a substantial chilling of religious expression.”

A Becket Fund attorney appeared in Rick Santorum’s 2014 movie about the “persecution” of American Christians. In 2014, Becket praised a ruling by the Supreme Court’s conservative justices on prayer at government meetings that narrowly defined what would amount to unconstitutional religious coercion.

Becket represented Hobby Lobby, the arts and crafts company whose challenge to the contraceptive coverage requirement under the Affordable Care Act won a first-ever ruling from the Supreme Court’s conservative justices that for-profit corporations can make “religious exercise” claims under the federal Religious Freedom Restoration Act. Becket argues that business owners are no less deserving of religious accommodation than churches or religiously affiliated nonprofits.

Becket has also represented a handful of religious institutions challenging the contraception mandate under the Affordable Care Act, and attacking the Obama administration’s accommodation for those with religious objections. Becket clients argue that even informing the government of their objections is a substantial burden on their religious liberty because that act would trigger the accommodation mechanism that would provide women with contraceptive coverage through other means. Becket accuses the Obama administration of working to push people of faith “to the margins.”

The Becket Fund urged the Supreme Court to uphold both California’s Prop 8 and the federal Defense of Marriage Act. In 2008, Becket ran a full-page ad in the New York Times charging that anti-Prop 8 protesters were “thugs” engaged in a “religious war” of violence and intimidation against the Mormon church; founder Kevin “Seamus” Hasson responded to criticism with a comparison of “radical secularist” Prop 8 protestors to Al-Qaeda and other “radical Islamist” perpetrators of violence.

Becket’s former general counsel Kyle Duncan, who served as lead counsel for Hobby Lobby’s owners in their challenge to the contraception coverage requirement under the Affordable Care Act, was a member of Marco Rubio’s “religious liberty advisory board” during his 2016 presidential campaign.

The American Principles Project

The American Principles Project, founded by anti-equality strategist Robert George and funded by board chair Sean Fieler, promotes the Religious Right’s anti-LGBT religious liberty strategy. APP joined with Heritage Action for America and FRC Action to push presidential candidates to sign a pledge that they would advocate for passage of the federal First Amendment Defense Act (FADA) and sign it into law during their first 100 days as president. The pledge was signed by Ted Cruz, Marco Rubio, Ben Carson, and Carly Fiorina; Jeb Bush and Donald Trump did not sign but publicly expressed support for FADA. Back in February, APP argued that Cruz’s victory in the Iowa caucus demonstrated that Trump was being hurt by not following Cruz’s lead in making religious liberty a campaign priority.

APP also promotes state-level religious liberty legislation. Senior Fellow Jane Robbins disparaged Georgia Gov. Nathan Deal’s recent veto of “religious freedom” legislation as a “shameful appeasement of leftist totalitarian interests.” She said the battle is not over: “Georgians of faith will be back — this year, next year, as long as it takes — until we secure protection of our God-given liberties.”

Executive Director Terry Schilling, like Catholics for Cruz member Robert George, recently argued that allowing transgender people to use bathrooms appropriate to their gender identity is part of a “war on women” being waged by “the American left.” Maggie Gallagher, former head of the National Organization for Marriage, is also an APP senior fellow.

Conclusion

The groups reviewed in this report represent the tip of the iceberg of a much larger movement that is trying to eliminate legal access to abortion and roll back legal protections for LGBT people, couples, and families — and trying to do so in the name of religious liberty. Anti-equality and anti-choice forces have made religious liberty their rallying cry precisely because genuine religious liberty is such a broadly cherished American ideal. Their mixed success with this religious liberty strategy may help explain why Religious Right groups are now expending so much effort on “bathroom” issues, portraying equality for transgender people as an open door to child molestation, the same way that the anti-marriage equality movement portrayed same-sex couples as malevolent threats to children for so many years. The defeat of Houston’s equal rights ordinance last year was a victory for this ugly fearmongering strategy, and so we are seeing that strategy multiplied — and sometimes connected explicitly to religious liberty rhetoric.

Where the Religious Right has made progress, it has done so thanks largely to Republican politicians who share their agenda or are afraid of being targeted by Religious Right voters. Fortunately, growing support for LGBT equality among Republicans as well as Democrats, and among religious and business leaders, is helping to limit the success of the Religious Right’s determined efforts to pit religious liberty against other constitutional principles.

Additional Resources:

Right Wing Watch coverage of religious liberty issues

“Religious Liberty: Sword or Shield,” People For the American Way, examines the potentially far-reaching consequences of the Supreme Court’s conservative justices’ rewriting of the Religious Freedom Restoration Act in the 2014 Hobby Lobby decision.

“The Persecution Complex: The Religious Right’s Deceptive Rallying Cry,” People For the American Way, exposes the false myths that undergird much of the Religious Right’s religious liberty rhetoric.

“Striking a Balance: Advancing Civil and Human Rights While Preserving Religious Liberty,” Leadership Conference Education Fund, examines the history of religious justifications for unjust policies throughout American history.

“Redefining Religious Liberty,” Political Research Associates, examines the history and organizations involved in the religious liberty movement.

“Religious Liberty and the Anti-LGBT Right,” the Southern Poverty Law Center

“The Push To Deny LGBT Americans Their Basic Rights, Explained,” ThinkProgress

“The Rise of Christian Conservative Legal Organizations,” Religion & Politics

Protect Thy Neighbor state legislative tracker, Americans United for Separation of Church and State

Source: www.pfaw.org/media-center/publications/who-weaponizing-religious-liberty

Religious Liberty: Shield or Sword?

Unfortunately, laws originally designed to shield individuals’ religious freedom have been turned into swords that, in the name of religion, harm other people and undermine measures to promote the common good.

Religious liberty is a fundamental American value and a promise that is enshrined in the U.S. Constitution. Protections for religious liberty have encouraged the development of peaceful pluralism and a vibrantly diverse religious landscape, including a fast-growing group of Americans who claim no religious affiliation. Today, however, “religious liberty” has also become an ideological rallying cry for a collection of culture warriors – and the linchpin of their legal and political strategies.

It hasn’t always been this way. Two decades ago, an extraordinarily broad coalition came together to strengthen legal protections for religious liberty by limiting the government’s authority to substantially burden an individual’s ability to exercise his or her faith. That law was a response to a Supreme Court ruling that threatened to undermine protections for religious minorities, and it reflected a strong, interfaith, bipartisan consensus. Today, however, that consensus has been shattered because social conservatives are trying to turn laws meant to shield individuals’ religious exercise into swords that individuals and corporations can use against anti-discrimination laws and other measures opposed by conservative religious groups.

With Religious Right groups crying “religious persecution” in response to the advance of marriage equality, and the Supreme Court’s conservative majority granting for-profit corporations the right to claim religious exemptions to laws that offend the owners’ religious beliefs, even when that comes at the expense of their employees’ interests, it is a good time to affirm some basic truths:

Religious freedom and equality under the law are both core constitutional principles;

Religious liberty, while fundamental, is not absolute, in the same way free speech and other constitutionally protected values are not absolute;

The government has a compelling interest in promoting public health and preventing discrimination;

Judges and other public officials regularly have to make difficult calls when constitutional and civil rights principles come into tension with each other;

Having your positions criticized in public discourse is not the same as being subject to persecution; neither is being on a losing end of a legal or policy dispute.

The Persecution Myth: Political Posturing with a Purpose

For decades, Religious Right leaders have falsely portrayed liberals as anti-faith and anti-freedom. This is a cynical political strategy: it is easier to convince people to support discrimination against their gay neighbors if you have first convinced them that gay people are enemies of faith and family. Fortunately, those arguments have lost much of their power as people experience the real lives of LGBT family and friends. But that doesn’t mean Religious Right leaders have abandoned their religious persecution claims. In fact they are doubling down.

In recent years, in response to the advance of women’s reproductive health care rights and LGBT equality, conservative evangelicals and conservative Catholics have put religious liberty claims at the center of their political, legal, and public relations strategies. “Religious liberty” has been the focus of resistance to the requirement under the Affordable Care Act that employer-provided insurance include coverage for contraception. And it has become a primary argument against marriage equality as other arguments against basic equality for LGBT people have lost their effectiveness.

In this political context, Religious Right leaders leap at any chance to portray progressives in general, and supporters of LGBT equality in particular, as enemies of religious liberty. This strategy explains why the Alliance Defense Fund manufactured a controversy in 2014 by claiming that the owners of a commercial wedding chapel in Idaho, who had previously conducted Christian, other religious, and non-religious ceremonies and weddings, were about to be thrown in jail for refusing to marry gay couples. The supposed threat to religious freedom evaporated under closer scrutiny – the owners had already reincorporated as a religious corporation that was not even subject to the law they were complaining about – but it succeeded in generating a wave of alarmist stories in right-wing media.

In early 2015, Religious Right groups rallied around Kelvin Cochran, the former fire chief of Atlanta, who was fired by Mayor Kasim Reed after he distributed to some of his employees copies of a book he had written in which he called homosexuality a perversion and said homosexual acts are “vile, vulgar and inappropriate.” When Religious Right leaders began portraying Cochran as the victim of religious persecution, Mayor Reed affirmed what was really at stake: “His religious (beliefs) are not the basis of the problem. His judgment is the basis of the problem.” The New York Times editorial board noted that Georgia lawmakers are among those pushing for a “religious freedom” bill that “would do little more than provide legal cover for anti-gay discrimination.”

The First Amendment already protects religious freedom. Nobody can tell Mr. Cochran what he can or cannot believe. If he wants to work as a public official, however, he may not foist his religious views on other city employees who have the right to a boss who does not speak of them as second-class citizens.

Religious Right leaders have argued recently that American Christians who are resisting LGBT equality are in the same position as German Christians who resisted the Nazis. That is a ridiculous and shameful assertion designed to inflame rather than inform the debate. The same is true for much of the Religious Right’s rhetoric. Movement leaders like the Family Research Council’s Tony Perkins have made wild accusations of hostility to religious freedom against the Obama administration. Perkins has claimed in a fundraising letter, for example, “The government’s top priority is to become the arbiter of values for America – and break the back of those who stand by traditional religious beliefs.”

Reality: A Constitutional Balancing Act

The First Amendment’s religious liberty clauses – the Establishment Clause and the Free Exercise Clause – work together to protect Americans’ religious freedom. As noted in People For the American Way Foundation’s Twelve Rules for Mixing Religion and Politics, these two principles can come into tension when they are applied to real-world situations, and the often challenging line-drawing has kept courts and legislatures busy for decades. In addition, religious liberty can come into friction with other constitutional principles, such as equal protection of the law, requiring efforts to reconcile and balance competing interests. People of good will can and do sometimes disagree about just where those lines should be drawn.

It is universally acknowledged (except in right-wing scare-mail) that churches and clergy are protected by the First Amendment from being required to give their religious blessing to same-sex couples. State marriage equality laws generally include language affirming that right. In addition, some state marriage equality laws permit religious organizations to refuse to facilitate same-sex weddings or in some cases recognize same-sex marriages. How much leeway, if any, religious organizations should be given in complying with laws on discrimination and access to reproductive health care is a question currently facing courts and legislatures. But conservative activists are pushing something far broader: the “right,” in the name of religious liberty, of for-profit businesses to exempt themselves from laws, including civil rights laws, based on the religious beliefs of their owners.

Context: The Religious Freedom Restoration Act

In 1993, a politically and religiously diverse coalition of organizations pushed for passage of the federal Religious Freedom Restoration Act (RFRA). The goal of the coalition was to reverse the impact of a Supreme Court decision that made it easier for government to infringe on individuals’ religious liberty. The case, Employment Division v Smith, involved Native Americans who were denied unemployment benefits under state law because they had been fired for using the illegal drug peyote as part of traditional religious ceremonies. The Court majority ruled that an individual whose exercise of religion was violated by a generally applicable government law or rule had no legal recourse under the First Amendment unless the law in question had specifically targeted the exercise of religion. This ruling, as Justice O’Connor pointed out, contradicted thirty years of Supreme Court precedent. With broad agreement that the Supreme Court ruling threatened the free exercise rights of religious minorities, RFRA passed with now-unimaginable bipartisan support: 97-3 in the Senate and unanimously by voice vote in the House.

RFRA was intended to establish a statutory civil right to religious liberty to replace the constitutional protection that had been offered by the Free Exercise Clause before the Court’s ruling in Smith. RFRA requires that if a law or rule places a substantial burden on a person’s exercise of religion, the government must demonstrate that the law serves a compelling government interest in the least restrictive way. The Court later ruled that Congress could only apply RFRA to the federal government and the District of Columbia, not to the states. Some states passed their own versions of RFRA, but efforts to re-mobilize the broad coalition failed as civil rights advocates began to worry, with good reason, that state-level RFRAs could be misused to undermine anti-discrimination laws passed by states and localities.

The coalition did come together for a more limited purpose to support the Religious Land Use and Institutionalized Persons Act (RLUIPA), which essentially provides the same protection as RFRA with respect to state and local prison rules and zoning decisions that sometimes substantially burden religious liberty interests of prisoners, churches, mosques, and others. Today, however, the RFRA coalition is in tatters as conservatives seek to use religious liberty claims not as a shield to protect free exercise of religion from government control, but as a sword to hack away at legal protections for others’ rights and interests.

The Hobby Lobby Case

On June 30, 2014, the U.S. Supreme Court issued a 5-4 decision in Burwell v. Hobby Lobby that could dramatically reshape the legal and political framework for religious liberty in America. In Hobby Lobby, the court misinterpreted the Religious Freedom Restoration Act, extending the right of religious conscience to for-profit corporations and radically altering the test that is used to balance claims that the law substantially burdens a person’s exercise of religion against competing claims and interests. In the months since the decision, it has become clear just how far-reaching and damaging its consequences could be.

The Hobby Lobby decision concerned two lower court rulings involving for-profit corporations arguing that the mandate under the Affordable Care Act that insurance coverage include contraception violates the religious freedom of the corporations and their owners. In one case, Hobby Lobby v. Sebelius, the 10th Circuit ruled in favor of the company; in the other, Conestoga Wood Specialties Corp. v. Sebelius, the Third Circuit sided with the federal government against the corporation and its human owners. By a 5-4 vote, with Justice Kennedy siding with Chief Justice Roberts and Justices Alito, Scalia, and Thomas, the Court ruled in favor of the corporations.

Misinterpreting the Religious Freedom Restoration Act

The premise of Justice Alito’s opinion in Hobby Lobby was a major misinterpretation of RFRA, whose purpose was, as mentioned above, to restore the state of the law that existed before the Supreme Court’s Smith ruling. As Justice Ginsburg wrote in dissent, the majority construed RFRA “as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”

This fundamental misinterpretation was crucial to the majority’s holding that for-profit corporations could invoke RFRA. As Justice Ginsburg explained, no previous Court decision under either RFRA or the Free Exercise clause had ever “recognized a for-profit corporation’s qualification for a religious exemption.” Although the majority tried to minimize its holding by suggesting that only family or other closely-held corporations would be able to invoke RFRA in practice, most American employees work for closely-held corporations. Besides, as Justice Ginsburg explained, the majority’s rationale is equally applicable to publicly traded corporations.

There is another major problem with the majority opinion, one that upends the balancing of interests intended by RFRA’s authors. The 5-4 majority essentially dismantled the requirement under RFRA that a person claiming an exemption must demonstrate that their “exercise of religion” would be substantially burdened. In several pre-Smith cases, the Court had ruled that there was no “substantial burden” created by, for example, the government’s use of Social Security numbers to administer benefit programs or the requirement that employers pay Social Security taxes, despite the sincere offense that these requirements caused to some religious beliefs. Indeed, as a unanimous Supreme Court concluded in rejecting an Amish farmer’s claim that paying social security taxes violated his religious conscience, when “followers of a particular sect enter into commercial activity as a matter of choice,” the “limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.”

Without proving that the government requirement actually interferes with what a religious adherent can actually believe or do, Justice Ginsburg explained, such religious “beliefs, however deeply held, do not suffice” to demonstrate a “substantial burden” under pre-Smith case law or under RFRA as properly interpreted. But Alito’s majority opinion created a dramatically new standard, allowing business owners to seek exemption for a law that merely offends their beliefs. This could open a huge avenue for anti-gay discrimination by business owners who claim religion-based objections to homosexuality, as well as for other claims to be exempt from anti-discrimination and other laws for religious reasons.

Having determined that the corporations in Hobby Lobby met the “substantial burden” requirement, the 5-4 majority went on to rule that, even assuming that guaranteeing cost-free access to contraceptives is a compelling government interest, the government had not shown that the contraceptive mandate was the least restrictive means of furthering that interest. Alternatively, the majority suggested, the government could itself assume the cost of providing the contraceptives or it could extend to for-profit corporations the accommodation that the government already provides to religious nonprofit corporations, in which an insurer would provide the coverage without imposing any costs on the objecting organization.

Hobby Lobby’s Aftermath

Just three days after the Hobby Lobby ruling, the Court granted an emergency injunction to Wheaton College, a religious non-profit college that has filed suit claiming that the existing accommodation for non-profits violates its rights under RFRA. Under the accommodation, the college only has to notify the government of its objections to providing coverage, and the government will notify the insurer that it must provide the coverage at no cost to the College. That is the very accommodation that the Court’s conservatives pointed to in Hobby Lobby as evidence that there were less restrictive ways to provide contraception coverage to Hobby Lobby’s employees. To have the Court, in the same week, grant an extraordinary injunction based on Wheaton College’s claims that the same accommodation was a substantial burden in its exercise of religion, was astonishing. “Those who are bound by our decisions usually believe they can take us at our word,” wrote Justice Sonya Sotomayor. “Not so today.” Sotomayor was joined by Justices Ginsburg and Kagan in her dissent.

In both the Wheaton College and Hobby Lobby decisions, Justice Alito and the conservative Court majority went out of their way to claim that the Court’s rulings were narrow. Justice Ginsburg, on the other hand, called Hobby Lobby a ruling of “startling breadth,” and many critics agree.

It is not clear how far the Court will extend the logic of Hobby Lobby. If corporations can exempt themselves from generally applicable laws based on the religious beliefs of their owners, and do so at the expense of others, what will happen when a conservative evangelical business owner refuses to abide by labor laws because he believes the Bible is opposed to unions, or to the minimum wage, or for that matter to certain kinds of taxes? Those are all positions argued by prominent Religious Right figures such as David Barton.

Using ‘Religious Freedom’ to Undermine Equality

One particular concern raised by Hobby Lobby involves the potential use of RFRA to seek exemptions from current or future federal measures to ban anti-LGBT discrimination. Indeed, Religious Right legal groups are actively asserting such claims against state-level anti-discrimination laws and are seeking to have such exemptions enshrined in federal legislation.

A few weeks after Hobby Lobby, President Obama issued an executive order that extended existing executive orders against racial and other discrimination by federal government contractors to also prohibit discrimination against LGBT people. A number of religious leaders called on the President to exempt religious organizations from the new order, but many other religious and civil rights organizations argued against such exemptions. The new order applied an existing rule that allows religiously affiliated contractors to favor individuals of their own particular religion when making employment decisions, but does not allow them to discriminate on the basis of race, sex, etc., and now also sexual orientation or gender identity.

But after Hobby Lobby, a for-profit or non-profit group contracting with the government could claim that the order’s application to them violates RFRA – and this would not be limited to sexual orientation and gender identity but could also include other categories covered by the executive order. Similarly, the District of Columbia’s Human Rights Act bans anti-LGBT discrimination, and since RFRA applies to DC as a federal enclave, a RFRA claim for an exemption could well be brought in that context as well. Although Justice Alito’s opinion appeared to specifically reject the application of RFRA to laws banning racial discrimination, he pointedly did not mention gender, LGBT, or other grounds under which discrimination is banned by various federal laws and regulations.

State RFRA Legislation

A number of states have recently considered legislation to grant a religion-based freedom to discriminate against LGBT people, laws which could also have other far-reaching consequences. Many of these laws were written more broadly than the federal RFRA, with looser standards such as eliminating the crucial word “substantial” modifying religious burden, although after Hobby Lobby, whether or not “substantial” is contained in such a law may not make much difference.

Authors of these new state RFRA bills generally want to create the broadest exemptions possible, which could lead to widespread harm, saddle states with litigation, and weaken the ability of anti-discrimination laws to achieve their purpose. The Religious Right’s overreach has created some opportunities for effective coalition-building in opposition. In 2012, for example, a coalition of civil rights, religious, law enforcement, and child welfare groups successfully urged voters in North Dakota to defeat a ballot measure that would have put overly broad RFRA language into the state constitution. Coalition members argued that the provisions could undermine child protection and law enforcement and could cause expensive chaos in the state’s courts.

In 2014, intensive organizing and education helped stall bills in a number of states, including Kansas, Oklahoma, Tennessee, and Georgia. Arizona Gov. Jan Brewer vetoed a bill after national attention focused on the state. Among those who had urged her to veto the bill were Arizona business leaders, GOP Sens. John McCain and Jeff Flake, and at least three Republican legislators who had originally voted for the bill. But in April of that year, Mississippi Gov. Phil Bryant signed the Mississippi Religious Freedom Restoration Act. The bill, originally modeled on the extremely expansive Arizona legislation, was modified in the wake of the Arizona controversy. Mississippi’s new law mirrors the federal legislation in some ways, but activists note that Mississippi law defines “person” to include businesses, so the new state law will apply to corporations as well as private citizens. In 2013, Bryant signed another “religious liberty” bill – one that could give religious cover for anti-gay bullying in public schools.

At the end of 2014, Michigan Republicans pushed “religious liberty” legislation through the state House, but it did not pass the Senate. The bill was reintroduced in Michigan in early 2015; similar RFRA bills and marriage-focused variations are expected to move in a number of states in 2015.

Small Business Owners and the Right’s Martyr-Making Machine

While many states and localities have passed laws against discrimination in public accommodations on the basis of sexual orientation, and in some cases gender identity, most have not. Arizona, for example, provides no legal protection against discrimination based on sexual orientation, which led many to argue that its proposed RFRA legislation was “unnecessary.”

Many of the cases that Religious Right groups cite as evidence that marriage equality undermines religious liberty concern small business owners – bakers, florists, and photographers – who have long been covered by state anti-discrimination laws regarding race, sex, and religion. But in states where those protections have been expanded to include sexual orientation, some businesses now run afoul of the law by refusing on religious grounds to provide services to gay groups or those related to same-sex couples’ commitment ceremonies or weddings.

Small business owners who want to run a business that reflects their values can be sympathetic figures. But what Religious Right groups defending owners who refuse to do business with same-sex couples are seeking to establish is a legal framework in which a business covered by an anti-discrimination law could ignore it on the basis of the owner’s religious beliefs on sex and marriage. Would such a principle also apply to religious beliefs on racial or gender equality?

Fifty years ago, Americans decided that a private business owner who serves the public can be required to abide by laws prohibiting discrimination on the basis of race, color, religion, sex, or national origin. Since then, many states and municipalities have added prohibitions on discrimination based on other characteristics like disability, sexual orientation, and gender identity. It is those laws that some religious conservatives are objecting to, arguing that they should be free to refuse to provide services to same-sex couples even when states have decided as a matter of public policy to ban anti-gay discrimination.

The tension between the rights of a business owner and the authority of a state to ban discrimination as a matter of public policy finds eloquent expression in New Mexico Supreme Court Justice Richard C. Bosson’s concurrence in a case decided in 2013. The state Court unanimously upheld a finding by the state’s Human Rights Commission that a couple who owned a wedding photography business that refused to provide services to a same-sex couple’s commitment ceremony had violated anti-discrimination law.

“On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice,” Bosson wrote. “At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less.”

Bosson also made it clear that upholding the state’s anti-discrimination law was not a rejection of the business owners’ religious freedom:

The Huguenins are free to think, to say, to believe, as they wish, they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life…In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs , so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.

Bosson’s opinion recognizes that there are competing interests at play while upholding the compelling public policy interest in prohibiting discrimination. But Religious Right leaders see the ruling as nothing short of tyranny. A lawyer for the Alliance Defending Freedom called the decision “a blow to our client and every American’s right to live free.” Cases in Colorado and Oregon involving bakery owners that declined to make a wedding cake for a same-sex couple and faced punishment for violating anti-discrimination laws have generated similar rhetoric. Lawyers for the New Mexico photography business unsuccessfully asked the U.S. Supreme Court to review the case, arguing that requiring the photographer to participate in a same-sex wedding is a violation of First Amendment Free Speech rights.

A proposed federal law introduced in 2013 in both houses of Congress, the Marriage and Religious Freedom Act, would forbid the federal government from taking “adverse action” against any person who “acts in accordance with a religious belief that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” Human Rights Campaign has warned that the law would permit federal workers, contractors, and grantees to refuse to serve married same-sex couples. A legally married gay couple or unmarried heterosexual couple would have no recourse, for example, if they were barred from the hospital of a dying spouse or partner. We expect that some version of the legislation will be re-introduced in 2015.

In 2014, in the weeks after marriage equality reached North Carolina, several magistrates quit their jobs rather than register the civil marriages of same-sex couples. Religious Right legal group Liberty Counsel urged others with religious objections not to quit their jobs, but to fight for their “right” not to register couples whose marriages violated their own personal religious beliefs. In fact, legislation that would provide a “religious exemption” for such clerks has been introduced in a number of states.

Broad Principles

What happens when core constitutional principles like religious liberty and legal equality come into tension? What should happen is an honest recognition that these tensions are inevitable and that reasonable people can disagree about where lines are drawn; a careful weighing of the principles and interests at stake; and a good-faith effort to find solutions that to the extent possible protect individual liberty and advance the common good. Religious liberty claims should not automatically trump others’ rights and interests, particularly when there is no substantial burden on an individual’s right to exercise their religion.

What actually happens is often quite different. Many conservative religious leaders insist that there is no common ground. Often implying that their position is the sole “religious” or “Christian” one, they portray religious freedom and marriage equality as inherently incompatible and declare that advocates of LGBT equality are by definition enemies of religious liberty and people of faith. They portray the contraception mandate, even after the Obama administration’s efforts to accommodate objections from religious organizations, as tyranny, evidence of a liberal-led war on religious liberty itself. In the Manhattan Declaration, conservative Catholic and evangelical leaders vowed civil disobedience and postured as if they faced martyrdom in America for their anti-gay and anti-choice advocacy.

This rhetorical overkill does a disservice to public understanding and debate – and to the truth. An editorial from America, a Catholic magazine published by the Jesuits, criticized the campaign by the U.S. bishops against the revised contraception mandate, saying, “By stretching the religious liberty strategy to cover the fine points of health care coverage, the campaign devalues the coinage of religious liberty.….It does a disservice to the victims of religious persecution everywhere to inflate policy differences into a struggle over religious freedom.”

Americans Support Equality and Religious Liberty

Americans treasure the First Amendment and the way its religious liberty clauses work to shield every person’s religious freedom. And Americans support the constitutional principle of equality under the law. The federal Religious Freedom Restoration Act was designed to protect individuals’ exercise of religion. It was not meant to be a weapon, a sword wielded by culture warriors against policies and people that offend them.
Source: www.pfaw.org/media-center/publications/religious-liberty-shield-or-sword