Although attitudes towards LGBTI people have improved, discrimination on the basis of sexual orientation and gender identity persists. Across the world, laws criminalizing homosexuality are still in place. The punishments vary, but can include flogging, imprisonment and even the death penalty.
A 2020 Supreme Court ruling made clear that civil rights laws prohibit discrimination based on sexual orientation, regardless of whether it violates religious freedom. But the law is not yet fully enforced.
1. The First Amendment
The First Amendment to the United States Constitution protects individuals and groups from burdensome government interference. Its protection of religious organizations’ ability to proselytize and their rights to freely express themselves without government restriction served as an important legal foothold for LGBTQ people in the early decades of this century. As documented in Carlos Ball’s book, this constitutional freedom allowed LGBTQ people to create publications, spaces, and institutions that helped them develop, define, and articulate their identities. In doing so, they were able to build communities and advance equality.
The Supreme Court’s decision in Friday’s 303 Creative case threatens these protections. This decision pits the right of LGBTQ people to obtain goods and services without discrimination against the free speech interests of graphic artists like Lorie Smith who refuses to design wedding websites for same-sex couples because it violates her Christian beliefs.
The decision could set a dangerous precedent. If it stands, the court could allow people to raise a 1st Amendment defense in order to avoid longstanding civil rights laws and create exemptions for other categories of discrimination. For example, this ruling would allow federal contractors to circumvent critical non-discrimination protections for LGBT people based on the contractors’ beliefs about same-sex marriage. Such a defense would undermine the impact of Supreme Court decisions that have backed LGBT rights in recent years and hollow out a decade of progress.
2. The Equal Protection Clause of the Fourteenth Amendment
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution protects all citizens from discrimination based on race, national origin, religion, sex, age, or disability. Civil rights movements for African Americans, women, LGBTQ people and others have used this provision as a basis to challenge discriminatory practices. Congress passed legislation that prohibited segregation and employment discrimination on the basis of these classifications and created the Equal Employment Opportunity Commission to enforce these laws.
Gay and lesbian people are no longer relegated to the fringes of American society, and they are fighting for their rights in Congress, on the streets and in the courts. But despite these advances, LGBT people still face real discrimination. They are denied the right to marry, fired from jobs or refused housing on the basis of their sexual orientation, and subjected to violent hate crimes.
The Supreme Court’s decisions on marriage equality and the Defense of Marriage Act suggest that it may be willing to treat homosexuality as a suspect classification worthy of constitutional scrutiny, but the Court has not decided what level of review should apply. In the meantime, the ACLU will continue representing individuals and groups who seek to bring claims involving discrimination on the basis of sexual orientation to justice.
3. The Religious Freedom Restoration Act
In the aftermath of a Supreme Court case in which a baker refused to make a wedding cake for a gay couple, state legislatures across the country have proposed and passed a variety of laws that grant religious exemptions from nondiscrimination protections for LGBT people. These laws vary in scope, from allowing child welfare agencies to refuse to place children with LGBTQ parents, to permitting mental health care providers and businesses that serve the public to refuse service to LGBT people on the grounds of their religious beliefs.
While the rationales for these bills differ, their framing reveals that the motivations behind them are rooted in hostility to recent advances in LGBT rights and an inability or unwillingness to recognize the harms of discrimination (Duggan 2004; Levitsky 2014). Both those who support and oppose these legislative initiatives invoke a cultural schema that sees the free market as an arbiter of justice and that elevates the principle of self-preservation over a commitment to fairness and equality.
Respondents in interviews for this report who supported these policies framed their views using a “free market” logic that assumes the economy is full of providers willing to provide services to LGBT people. In this framework, people harmed by the refusals of some providers simply have to spend more time and money finding other providers who will be open to them.
4. The Civil Rights Act of 1964
The Civil Rights Act of 1964 was the most sweeping civil rights legislation passed by Congress. The act banned discrimination based on race, color, religion, national origin and sex in employment, schools, public facilities and other aspects of daily life. It was signed into law by President Lyndon B. Johnson after years of efforts by civil rights activists, including Martin Luther King Jr. The act also amended the Constitution to protect the voting rights of black Americans.
In a historic 2020 ruling, the Supreme Court of the United States determined that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination against lesbian, gay and transgender workers. The case, Bostock v. Clayton County, involved consolidated cases filed by two men who were fired for being gay and one woman who was fired after announcing she would transition to female at work.
Supreme Court Justice Neil Gorsuch wrote in the majority opinion that Congress’ intent was to prevent discrimination based on “because of sex” which encompassed sexual orientation and gender identity. The ruling makes it unlawful for employers to discriminate against a worker because of their sex and will likely influence other federal laws that bar sex-based discrimination such as Title IX, the Fair Housing Act and the Equal Credit Opportunity Act.
Employers should immediately review employee handbooks, guidelines and training to ensure that all equal opportunity, non-discrimination and anti-harassment policies include LBGTQ protections. In addition, many state and local laws already provide similar protections for LBGTQ people.