Photo by Raphael Renter | @raphi_rawr on UnsplashOne of the weird things I frequently get asked when people find out I’m a constitutional attorney is: “What is your favorite amendment?” From first dates to appointments with a new doctor to awkward party conversation, I think I’ve answered that question about a billion times. I’m not really sure what information about my personality they’re trying to glean from that question. It feels a lot like asking where I’m from or what my star sign is. For whatever it does tell you, it probably comes as no surprise that my favorite is the First Amendment.
The framers were deeply flawed men, serving their own agendas and social priorities, but one of the things that they got unquestionably right was the need for the express protection of the freedom of religion, speech, press, assembly and petition. Certainly, the core principles behind those protections were on target, but the execution has always been sticky, messy and constantly evolving along with the changing structure of American civil society. These are vague, lofty ideals, and the framers were wise enough to know that they could not possibly predict every possible way these issues might arise in the future. The framers had no possible way of conceiving of the implications of the civil rights movement, much less in the internet age. They had to build a structure for an unknowable number of generations with an unknowable number of future challenges, and as such, gave us a toolkit, with the hopes that we would use it wisely.
The thing about tools is that it’s really up to the individual to decide how to use the tools. Where I might grab a hammer to build a table, another person might build a dresser, and yet a third person might build an entire barn. And if you find one tool to be insufficient, you might reach for another instead.
This is increasingly the case for the Christian nationalist movement, particularly in regard to their increasing attacks on LGBTQIA+ communities. While the religion clauses have provided them with significant benefit, they’ve often found that they are able to much more easily achieve their ends of Christofacism by cloaking their bigotry under the guise of speech. Earlier this month, I walked you through Chiles v. Salazar, in which a Colorado mental health counselor is seeking the right to provide conversion therapy services under the guise of “speech protections,” but this trend of reaching for speech over religion has been on the upswing for quite some time.
In 1992, the South Boston Allied War Veterans Council, a private organization, was granted a permit to run Boston’s St. Patrick’s Day Parade. The Irish-American Gay, Lesbian & Bisexual Group of Boston (GLIB) sought to march with its own banner, but the organizers refused, saying GLIB’s message of supporting homosexuality and bisexuality was not one that they wished the parade to convey. GLIB sued, claiming discrimination, and Massachusetts state courts held that the state’s public accommodations law required its inclusion. When the case reached the Supreme Court in 1995, however, it reversed unanimously, holding that a parade is inherently an expressive activity, since it “speaks” through its selection of participants and messages. Therefore, any application of the state’s public accommodations law that would force organizers to include a group with a specific message they would not otherwise agree with is compelled speech, violating the First Amendment.
While religion was never explicitly brought to the forefront in this case beyond vague references to Irish-Catholic culture, it laid the groundwork for a number of other cases. Five years later, the Supreme Court applied this logic in Boy Scouts of America v. Dale, holding that the Boy Scouts could bar homosexuals from serving as troop leaders, as it violated the organization’s “moral and value” code (again vaguely referencing religious belief without fully naming it outright), and that forcing the group to accept homosexuals as troop leaders would violate its right to “expressive association.”
In 2018, this logic would again be presented to the public in the infamous Masterpiece Cakeshop “gay wedding cake” case, the first of three cases I have begun to refer to as the Colorado Cases. In this particular case, Colorado’s public accommodations law was challenged by a bakery owner refusing due to his religious beliefs to serve a same-sex couple who wished to purchase a wedding cake. Though the Supreme Court resolved the case as a matter of “religious hostility” rather than speech, the bakery owner still once again presented this idea that being required to serve or be associated with a same-sex wedding was in fact “compelled speech.” This, finally, is where we start to see the religious arguments become much more explicitly named while still focusing on “speech” as the core issue.
We can then trace this thread on to the second of the Colorado Cases in 2023’s 303 Creative v. Elenis. Using similar logic to Masterpiece Cakeshop, a Colorado-based graphic designer who was considering adding wedding websites to her menu of services sued the state in order to be permitted to refuse her services to same-sex couples. Again, her refusal was explicitly grounded on the basis of her Christian faith, but she argued that her concern was one of speech/expression, claiming that the law would force her to “endorse” a form of marriage that she was theologically opposed to. The court bought into this line of thinking that had been neatly teed up by the cases before it, ruling that enforcement of the Colorado public accommodations law against her would violate her speech rights.
This leads us into this year’s oral arguments in Chiles v. Salazar, the third of the Colorado Cases, in which a Christian mental health counselor challenged the state’s ban on conversion therapy on minors, arguing that as a talk therapist, the law was unconstitutionally limiting her speech rights. Chiles’ attorneys argued that the law interfered with her ability to provide “full counseling services in line with her and her clients’ religious convictions” and that because her care only takes the form of speech (as opposed to conduct like prescribing medications), the government cannot constitutionally restrict what she says to her clients.
If you’re thinking the three Colorado Cases sound very similar, there’s a good reason for that: They were all brought to the Supreme Court by the Alliance Defending Freedom (ADF), a prominent Christian nationalist legal and policy outfit. The group has found the strategy that works, allowing it an easier path forward to ensure that Christians of its particular theological bent are given special allowances and that its beliefs are respected above all others — no matter the cost.
The fact that this string of cases centers around LGBTQIA+ rights is not a coincidence either. LGBTQIA+ communities have become an easy cultural scapegoat of the Christian nationalist movement. It seems that we are to blame for everything from violent crime to the state of the education system, from “corrupting” children and eroding traditional family values to causing economic instability, undermining public health, and driving a broader moral and cultural decline. Trans people in particular have been a favorite punching bag, not because we have actually done anything wrong but because we are a small minority that many people do not have personal experience with. LGBTQIA+ communities have also consistently challenged the long-held assumptions about sex, gender and sexuality rippling out from the Pilgrims and Puritans into our modern cultural anxieties that still frequently inform much of American culture. Americans are deeply uncomfortable with talking about sex — and this is something the Christian nationalist movement has learned to exploit as a strategy for establishing and maintaining theocracy.
While LGBTQIA+ communities certainly existed in the 18th century, our rights (along with those of women, people of color and people living in poverty) were not something that the framers were interested in articulating. These rights have had to be developed and fought for along the way — something the Constitution has granted us the frameworks and flexibility to accomplish. But because these rights have had less time to solidify into the American cultural fabric, they are more fragile. And because these rights delegitimize the previous cultural hierarchy that provided white Christian men with the power to dominate all other groups in the United States, they will do everything in their power to prevent these rights from settling into our cultural consciousness. All too frequently, LGBTQIA+ identity is presented as a cultural aberration, and in the legal context, our rights are often characterized as being subordinate to those that were explicitly outlined in the Constitution. You can find opposition to LGBTQIA+ rights littered across Supreme Court dissents, where justices claim that positive rulings are ignoring “real” rights that are directly written into the Constitution.
This legal strategy relies on a strict textualist interpretation of the Constitution, one that transforms it from a living, breathing framework to unerring gospel. It also apotheosizes the framers from mere mortals to omnipotent gods, capable of foreseeing any number of civil rights movements and disagreeing with them. The Christian nationalist movement has simply copy-pasted its dangerous and fanatical approach to religion onto legal strategy — and all too often, it seems to be working.
This matters for more than just LGBTQIA+ communities however. Once this strategy decimates our rights, it will set the precedent to decimate a whole host of other rights. The fall of anti-discrimination protections, marriage rights, self-expression, bodily autonomy and beyond will not stop with us. It will merely open the door to strip all social progress, until are living in the legal equivalent of the 18th century.
LGBTQIA+ rights might be the first theocratic domino, but we certainly won’t be the last.
Disclaimer: The views in this column are of the author and do not necessarily reflect those of the Freedom From Religion Foundation.
