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The Karsh Center for Law and Democracy hosted a panel discussion on the intersection of LGBTQ+ rights and religious liberty, addressing the conflicts and potential legislative solutions in modern America. The panel included former Utah Supreme Court Chief Justice Christine Durham, Yale Law School Professor William Eskridge, Jr., ACLU Women’s Rights Project Director Ria Tabacco Mar, and University of Illinois College of Law Professor Robin Wilson ’95, with Professor Craig Konnoth moderating.
The panel began by discussing the conflict between LGBTQ+ rights and religious liberty in contemporary America. Justice Durham highlighted the rise in militant religious assertiveness and the need to consider both the Free Exercise Clause and the Establishment Clause in the First Amendment when discussing religious liberty.
Professor Eskridge emphasized that both LGBTQ+ individuals and deeply religious individuals perceive their dignity and self-expression at stake. He noted that both sides feel dispossessed and that conflicts like the 303 Creative case exemplify the tension between equality and liberty.
Tabacco Mar drew parallels with past battles between racial equality and religious liberty, such as the case of Newman v. Piggie Park Enterprises, Inc., where religious beliefs were not accepted as a valid reason to deny access to public spaces based on race. She encouraged the audience to question why extending protections to LGBTQ+ people might feel uncomfortable to some.
Professor Wilson agreed that LGBTQ+ individuals should enjoy equal citizenship rights but cautioned against making interactions a zero-sum game. Instead, she suggested that state legislatures should work to carve out exceptions to prevent conflicts, as seen in Utah's statute allowing clerks to opt out of performing same-sex marriages.
Tabacco Mar expressed concerns that creating "opt-out" policies might lead to broader exemptions over time. The panelists then debated the importance of legislative compromise, with Professor Eskridge and Professor Wilson supporting the idea while Tabacco Mar and Justice Durham remained skeptical.
Justice Durham highlighted the challenges of legislative action in highly conservative states, where one-party systems and gerrymandering can hinder progress. The panel also discussed the harms experienced by LGBTQ+ individuals denied service and the potential harm faced by religious individuals forced to provide services against their beliefs.
Tabacco Mar emphasized that LGBTQ+ people shouldn't have to compromise their identities to avoid conflict and described the enduring impact of being turned away. The panel provided insights into the complexities of balancing LGBTQ+ rights and religious liberty in contemporary legal debates.
