As courts continue to broaden their interpretation of sex discrimination to include protections for LGBTQ people in key aspects of daily life and states and cities expand civil rights protections to explicitly include LGBTQ people, we are seeing a direct attack on LGBTQ rights in the name of freedom of religion. While freedom of religion protects the right to both believe in and act on religious beliefs, that freedom is not a license to discriminate against or otherwise harm others. Not only is the Trump Administration attempting to make it easier for people to discriminate based on their personal beliefs, the Supreme Court’s narrow, case-specific holding in Masterpiece Cakeshop left several critical questions open around whether for-profit businesses have the constitutional right to refuse service to LGBTQ customers based on the religious beliefs of the business’ owners. This panel will cover how federal courts have ruled more and more that the prohibitions against sex discrimination include protections for LGBTQ individuals, as well as the future of this given that the Supreme Court has taken up these questions and will either confirm or upend years of precedent. We will also discuss potential Congressional action on this issue and the battles being waged in the name of religion to roll back said protections. The panel will also discuss how a progressive reading of corporate law principles, and in particular corporate separateness, may provide courts with an alternative route for resolving the constitutional questions presented in cases where businesses claim exemptions from antidiscrimination laws.
CLE Materials I, II