Study Guide Part IV: First Amendment

Religious Freedom and LGBTQ Rights:

I. Theoretical Framework: The Collision of Constitutional
Rights
Core Constitutional Principles

First Amendment Free Exercise Clause

 "Congress shall make no law... prohibiting the free exercise [of religion]"
 Protects religious beliefs absolutely, religious conduct with limitations
 Neutral laws of general applicability vs. laws targeting religion

First Amendment Free Speech Clause

 Protection for expressive conduct and symbolic speech

Equal Protection and Anti-Discrimination Principles

 Public accommodations laws prohibit discrimination in places open to public

 State interests in ensuring equal access to marketplace
 Dignity interests of protected classes

The Central Tension

The fundamental conflict arises when:

1. Religious individuals/organizations claim exemptions from anti-discrimination laws

2. LGBTQ individuals seek equal access to goods, services, and programs
3. Courts must balance competing constitutional and statutory rights

Key analytical questions:

 Is providing a service inherently expressive?

 When does anti-discrimination law compel speech?
 What level of burden on religion triggers strict scrutiny?
 How do third-party harms affect religious exemption analysis?

II. Major Supreme Court Cases

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)

Facts:

 Jack Phillips, Christian baker, refused to create wedding cake for same-sex couple
 Colorado Civil Rights Commission found violation of public accommodations law
 Phillips claimed Free Exercise and Free Speech violations

Holding (7-2):

 Narrow ruling for baker based on Commission's hostility toward religion

 Court did NOT decide whether creating cake constitutes protected speech
 Court did NOT create broad religious exemption from anti-discrimination laws

Kennedy's Majority Opinion:

 Commission showed "clear and impermissible hostility" toward Phillips' religious beliefs
 Commissioners made disparaging comments about religion
 "Religious and philosophical objections to gay marriage are protected views"

Key Principle: Government must apply anti-discrimination laws in manner neutral toward
religion

What Court Avoided:

 Whether custom wedding cakes constitute artistic expression/speech

 Scope of religious exemptions from neutral laws
 How to balance religious freedom against equal access

Significance:

 Punted on major constitutional questions

 Emphasized need for neutral enforcement
 Left door open for both religious exemptions and anti-discrimination enforcement

Fulton v. City of Philadelphia (2021)

Facts:

 Catholic Social Services (CSS) refused to certify same-sex couples as foster parents
 Philadelphia ended contract with CSS for violating non-discrimination requirement
 CSS sued claiming Free Exercise violation

Holding (9-0 with multiple opinions):

 City violated Free Exercise by denying contract to CSS

  Commissioner had discretion to grant exemptions = not generally applicable
 Under strict scrutiny, city lacked compelling interest in this particular case
 Refusing to contract with CSS doesn't serve goal of maximizing foster placements
 "CSS seeks only an accommodation that will allow it to continue serving children"

Significance:

 Made it easier to challenge "neutral" laws

 Signaled potential shift toward broader religious exemptions
 All nine justices sided with religious organization (though for different reasons)

303 Creative LLC v. Elenis (2023)

Facts:

 Lorie Smith, website designer, wanted to create wedding websites

 Sought to post statement refusing same-sex wedding websites
 Pre-enforcement challenge to Colorado Anti-Discrimination Act (CADA)

Holding (6-3):

 First Amendment prohibits Colorado from compelling Smith to create websites for same-
sex weddings
 Creating custom websites = pure speech protected by First Amendment
 Stipulated that Smith's work involves expressive content

Gorsuch's Majority Opinion:

 "The First Amendment envisions the United States as a rich and complex place where all
persons are free to think and speak as they wish"
 Colorado cannot "compel an individual to speak" contrary to beliefs
 Forcing Smith to create same-sex wedding websites = compelled speech
 Public accommodations laws are important but cannot override First Amendment

Key Distinctions:

 This is FREE SPEECH case, not Free Exercise case

 Focuses on expressive services, not denial of all services
 Smith willing to serve LGBTQ customers, just not for same-sex weddings

Sotomayor's Dissent (w/ Kagan, Jackson):

 Majority grants "license to discriminate" in public accommodations

 "Today, the Court, for the first time in its history, grants a business open to the public a
constitutional right to refuse to serve members of a protected class"
 Distinguishes between regulating conduct vs. speech
  Warns of discrimination by other creative professionals

Significance:

 Creates First Amendment exception to public accommodations laws for expressive

services
 Shifts from religious freedom to free speech framework
 Opens door to "as-applied" challenges by creative professionals
 Leaves many line-drawing questions unresolved

III. Current and Developing Cases

United States v. Skrmetti

Issue: Whether Tennessee's ban on gender-affirming medical care for transgender minors
violates Equal Protection Clause

Background:

 Tennessee SB1 prohibits medical providers from providing puberty blockers, hormones,
or surgery for gender dysphoria in minors
 Allows same treatments for other medical purposes (e.g., precocious puberty)
 Sixth Circuit upheld law using rational basis review

Key Questions:

 What level of scrutiny applies to transgender discrimination?

 Is this sex discrimination requiring intermediate scrutiny?
 Role of parental rights in medical decision-making
 Extent of state's authority to regulate medical care for minors

Arguments:

 Challengers: Sex-based classification requiring intermediate scrutiny; discriminates

based on transgender status; violates parental rights
 Tennessee: Regulation of medical procedures, not discrimination; protecting children
from experimental treatments; rational basis applies

Significance:

 First major Supreme Court case on transgender rights since Bostock v. Clayton County
(2020)
 Intersection of Equal Protection, parental rights, and medical regulation
  Held to be related to age and medical condition, not sex, and rationally related to state’s
interests

IV. Other Legislation: Curriculum Laws and Parent’s

Rights
Note Divergence of approaches regarding sexuality; some states require it to be
taught in a negative light; others (CA) prohibit this practice; others avoid issue
altogether.

Rosky’s approaches:

(1) ‘don’t say gay’ laws that bar mention of homosexuality;

(2) ‘no promo homo’ laws that admonish against a positive mention of
homosexuality;

(3) ‘anti-gay’ policies that require negative treatment of homosexuality;

(4) ‘promo hetero’ policies that require instruction that promotes heterosexual,
monogamous marriage; and

(5) ‘abstinence til marriage’ laws that exclude mention of same-sex couples.

Florida's "Parental Rights in Education Act" (H.B. 1557)

Nicknamed "Don't Say Gay" law

Key Provisions:

 Prohibits "classroom instruction" on sexual orientation or gender identity in grades K-3

 Prohibits instruction that is not "age-appropriate or developmentally appropriate" in all
grades
 Requires parental notification of health services
 Creates private right of action for parents

Broader Impact:

 Copycat bills in multiple states

 Self-censorship by teachers and schools
 Removal of LGBTQ books and resources
 Impact on LGBTQ students and families
Curriculum Transparency Laws

Common Features:

 Require posting of all curriculum materials online

 Mandate parental review periods for new materials
 Create challenge procedures for "objectionable" content
 Often target discussions of race, gender, sexuality

First Amendment Issues:

 Government speech doctrine in K-12 settings

 Academic freedom for teachers
 Student speech rights
 Access to information in school libraries

Parent’s Rights in Schools

 Strong Parental Right to control care and upbringing of children from Meyer v. Nebraska
 In matters of sexual health education, parents do not have a constitutional right of notice
or a right to opt out, but most states have laws that require parental involvement
 Recall issue of gender privacy in CA
 Recall Mahmoud v. Taylor which held that not allowing parents to opt out of LGBTQ
inclusive storybooks burdened their religious freedom

Inclusion of Transgender Athletes

 CA requires inclusion consistent with student’s gender identity

 Many, many other states require otherwise
 Other states focus on extent of the medical intervention the student has received
 Note divergence in case law
 Note Clarke’s treatment of ‘sex assigned at birth’ and state’s interests in documentation

V. Analytical Frameworks and Doctrinal Tensions

Free Speech Analysis

Compelled Speech Doctrine:

 Government cannot force individuals to express messages they disagree with

 Applies to both pure speech and expressive conduct
Public Accommodations and Speech:

 Traditionally, providing services ≠ speech

 303 Creative changes this for "expressive" services
 Line-drawing problems: What counts as expressive?

Equal Protection Framework

Level of Scrutiny for LGBTQ Discrimination:

Current State:

 Sexual orientation: No Supreme Court ruling on level of scrutiny

 Gender identity: unclear
 Some circuits apply heightened scrutiny
 Bostock (Title VII) used "because of sex" reasoning

Arguments for Heightened Scrutiny:

 History of discrimination
 Political powerlessness (debatable post-Obergefell)
 Immutable characteristics
 Irrelevance to legitimate government purposes

Sex Discrimination Analogy:

 Discrimination against LGBTQ individuals = sex discrimination?

 Cannot treat person differently for dating/marrying same sex
 Gender identity discrimination inherently involves sex stereotypes

VI. Major Critiques and Perspectives

Religious Liberty Advocates' Perspective

Core Arguments:

1. Conscience Protection: Forcing participation in same-sex weddings violates deeply held

beliefs
2. Pluralism: Society should accommodate diverse moral views
3. Limited Nature: Seeking narrow exemptions, not broad discrimination
4. Compelled Expression: Creating custom goods forces endorsement of messages
5. Religious Targeting: Progressive officials show hostility toward traditional beliefs
LGBTQ Rights Advocates' Perspective

Core Arguments:

1. Dignity Harm: Refusal of service causes dignified harm and stigma

2. Public Accommodations Principle: Businesses open to public must serve all equally
3. Slippery Slope: Religious exemptions could swallow anti-discrimination rules
4. Historical Parallel: Similar arguments made for racial discrimination
5. Third-Party Harm: Religious exercise shouldn't harm others' rights

Critical Race Theory Lens:

 Intersectionality: LGBTQ people of color face compound discrimination

 Religious freedom arguments echo segregation-era rhetoric
 Need to examine power dynamics, not just formal rights