Moving Targets: Obergefell, Hobby Lobby, and the Future of LGBT Rights

The recognition of marriage equality in Obergefell v. Hodges, just one year after Burwell v. Hobby Lobby Stores, Inc. broadened the law of religious freedom, highlights the potential collision course of these movements. This paper is an attempt to navigate the waters where such a collision is most likely. As LGBT rights grow, the choice between generic religious privilege, typified by the Religious Freedom Restoration Act (RFRA), and specific religious accommodations, such as the treatment of religious non- profits in federal law, will define the terms of the conflict. Part I addresses current federal law, and focuses on the extent to which federal law authorizes religious exemptions from duties to avoid discrimination. The principal examples considered involve the duty of public officials, such as Rowan County (KY) Clerk Kim Davis, to respect the rights of same-sex couples; the duties of military chaplains; and the obligations of employers under the Family and Medical Leave Act. Part II turns to the potential effect of Obergefell and Hobby Lobby on legislative expansion of federal non-discrimination law to cover sexual orientation and gender identity. Hobby Lobby will exacerbate the difficulty of legislative compromises between the cause of LGBT rights and religious freedom concerns. As reflected in the proposed Equality Act, the most difficult questions of law and policy, analyzed in this Part, will involve the rights of religious organizations to engage in otherwise forbidden LGBT discrimination. Part III turns to state law, where recent battles in Indiana and elsewhere have been nationally explosive. Part III.A. explores the significant geographical disconnect between states with RFRAs and those with broad protections for LGBT rights. This Part includes analysis of the cases involving refusal by vendors to serve same sex weddings. Part III.B. discusses recent and anticipated legislative fights, including those involving religiously affiliated non-profit organizations, and suggests that 1) Hobby Lobby has made negotiations more difficult, and 2) some accommodations of religious non-profit organizations remain viable, especially if it coupled with broad expansion of LGBT rights in the commercial sector. Part III.C. focuses on the adjudicative battles that lie ahead between LGBT rights and religious freedom, and the significance of Hobby Lobby for those contests