The Supreme Court has developed a track record in recent years of ruling in favor of claimants seeking freedom to defy religiously neutral laws of general applicability for religious reasons, sometimes together with free speech reasons.  In addition to the religious claimants’ notable winning streak, the pattern of decisions also is characterized by rejection of those claimants’ requests to overrule longstanding doctrine in favor of decisions turning on case-specific facts while purporting to apply the familiar rule, notwithstanding that the religious claim would have failed under the usual understanding of that rule.  These cases have included Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. Philadelphia.  Three cases pending as of this writing seem likely to reinforce the track record, with or without reshaping the doctrines governing (i) public funding of religious education (Carson v. Makin); (ii) religious activity by public school employees acting in school leadership roles (Kennedy v. Bremerton); and free speech rights as licenses to discriminate by certain commercial businesses (303 Creative v. Elenis).  The first two of these cases were argued during the 2021 term and decisions are expected by the time of the conference.  Briefing in 303 Creative is taking place during the summer of 2022 and argument is expected in late 2022.  This panel will analyze the likely implications of the decisions in Carson v. Makin (argued Dec. 8, 2021) and Kennedy v. Bremerton (argued April 25, 2022), and of arguments presented by both sides and various amici in 303 Creative. These analyses then will be considered in the larger global context where religion is invoked analogously in many countries to justify opposition to LGBTIQ+ equality and inclusion, and too-often to justify SOGI change efforts.  Some reactionary religious organizations and leaders have explained their religion-based rejection of LGBTIQ+ people as opposition to a so-called “gender ideology movement,” which is described as dangerous because it supports reproductive freedom and women’s equality as well as respect for LGBTIQ+ identity.

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