Abstract
In three recent cases—Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. City of Philadelphia, and 303 Creative LLC v. Elenis—the U.S. Supreme Court held in favor of a conservative Christian claimant who sought a religious exemption, reasoning that the First Amendment’s Free Exercise or Free Speech clause exempted the claimant from complying with a validly enacted antidiscrimination provision barring discrimination based on sexual orientation and gender identity.
Many legal scholars and commentators have decried these decisions as radically altering First Amendment law at the expense of LGBTQ civil rights. In contrast, many national LGBTQ rights organizations have engaged in a different kind of narrative about these cases, one that tends to minimize the scope and breadth of the risk and retrenchment created by these decisions. I call this the Narrowness Narrative because it characterizes these three decisions as narrow in ways that obscure the bigger and more troubling picture, namely the Court’s burgeoning sympathy for the interests of the white Christian nationalism movement and the undeniable trend of the Court’s elevation of these interests and the concomitant subordination of marginalized communities, including the LGBTQ community.
In his Childress Lecture and article, Professor Ball counsels that, in order to keep progressivism’s distributive and egalitarian goals centered within the progressive legal movement, “it is important for progressive activists, commentators, and academics to consider how specific constitutional claims made in court impact the framing of policy questions outside of the judicial context.” This essay adapts and extends that call to a different stage of the life cycle of LGBTQ rights litigation and, in some instances to different actors in that movement, by focusing on the post-mortem messaging of national LGBTQ rights organizations upon the Court’s issuing of a ruling that diminishes LGBTQ equality. I advocate that these national organizations ought to be attentive to progressivism’s distributive and egalitarian goals when issuing public statements about anti-LGBTQ U.S. Supreme Court decisions and contend that the Narrowness Narrative is counterproductive to progressivism’s goals.
Recommended Citation
Kyle C. Velte,
Debunking the Narrowness Narrative in LGBTQ Religious Exemption Claims,
68
St. Louis U. L.J.
(2024).
Available at:
https://scholarship.law.slu.edu/lj/vol68/iss4/8