Abstract
This Article argues that the Supreme Court has relied on two simplifying assumptions in First Amendment exemption cases involving LGBTQ issues. The first assumption is that the government’s interest in addressing and remedying discrimination is irrelevant to the matter at hand. The second assumption is that state officials, in enforcing sexual orientation antidiscrimination laws against individuals who object to them on religious or moral grounds, seek to force the dissenters to speak in ways they do not want to speak. As the Article explains, the Court has abided by neither simplifying assumption in exemption cases involving the application of race or sex antidiscrimination laws. In explaining why the Court has treated sexual orientation exemption cases differently than race or sex ones, the Article points to two categories of statements repeatedly made by several justices in recent years that closely overlap with conservative positions on LGBTQ equality. The first set of statements reflects the conservative view that those who oppose same-sex marriage, unlike those who oppose racial equality, are decent and fair-minded individuals who are neither prejudiced nor bigoted. The second set reflects the conservative position that the pursuit of LGBTQ equality is a zero-sum game because equality gains for sexual minorities inevitably restrict the First Amendment rights of those who oppose that equality.
Recommended Citation
Carlos A. Ball,
Supreme Court LGBTQ Orthodoxy,
90 Mo. L. Rev.
(2025)
Available at: https://scholarship.law.missouri.edu/mlr/vol90/iss3/11