Recently, Supreme Court Justices Clarence Thomas and Samuel Alito took the unusual step — on the first day of the court’s new term — of issuing a statement attacking the 2015 decision in Obergefell v. Hodges, which cleared the way for same-sex marriage nationwide.
Justice Thomas wrote that “by choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment … the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ruinous consequences for religious liberty.”
While Amy Coney Barrett dodged questions on how she would rule in a case challenging Obergefell during her Supreme Court confirmation hearings last week, her support of religious exemptions is well-documented.
Positioning religious liberty and LGBT rights as inherently in conflict is a familiar stance that has animated federal policy under the Trump administration and guided decisions in a number of state courts and legislatures. But what this framing misses is that almost half of LGBT people in the U.S. are also people of faith.
Many faiths in the U.S. and internationally are supportive of marriage equality for same-sex couples, and marriage is a central practice in many of those religions. A new study by the Williams Institute shows that over 5.3 million LGBT people in the U.S. believe religion is important to them, attend religious services, or both.
Like all religious people in the U.S., religious LGBT adults are socio-demographically diverse, live in every region and state, and participate in all religious denominations. Like non-LGBT adults, those who are older, Black, and/or living in the South are more likely to be religious.
Among religious LGBT adults, there are an estimated 1.5 million LGBT Protestants in the United States who share a religion with Justice Gorsuch, 1.3 million LGBT Roman Catholics who share their faith with Justices Roberts, Kavanaugh, Sotomayor, Thomas, and Alito (and most likely a new Justice Barrett), and 131,000 LGBT Jewish adults who share their religion with Justices Kagan and Breyer.
However, where LGBT religious adults differ the most from those who are not LGBT is in their affiliations with non-Christian religions. LGBT religious adults are much more likely to be Jewish, Muslim, or affiliated with a non-Christian religion. There are over 100,000 LGBT Mormons and 100,000 LGBT Muslims in the U.S.
When it comes to marriage, both LGBT and non-LGBT married people are more likely to be religious. These are the very LGBT people that Justices Alito and Thomas frame as in conflict with religious people. Will the Obergefell decision also have ruinous consequences for them?
In recent years, a number of states have enacted laws that allow service providers, government officials, or employers to refuse to provide services or employment to LGBT people based on religious or even moral objections. The Trump administration has also worked to create and implement such exemptions at the federal level.
These religious exemptions to laws that protect LGBT people from discrimination allow people with one set of religious beliefs to discriminate against people of another faith. It is a concept antithetical to our founding values, and something that Justices Thomas and Alito claim to oppose.
What is clear is that with or without the confirmation of Judge Amy Coney Barrett, the Supreme Court will continue to erode the equality of LGBT people in the name of religious liberty. It is important that we resist the outdated and stereotypical belief that LGBT people are not religious and recognize that this is a conflict between one religious group and another.
Brad Sears is the interim executive director at the Williams Institute and the associate dean of public interest law at UCLA Law.