Session 12: Religious Liberty, Race & Sexuality
As with reproductive rights, an inordinate amount of “religious liberty” litigation over the past decade has focused on apparent conflicts between religious exercise and LGBTQ civil rights. In this session, learn why even theologically conservative Black Christians have been wary of these “religious liberty” lawsuits, and how people of faith—rather than fighting for a legal right to refuse and demean others—might instead seek a legal doctrine based on a mutual responsibility to care for others.
About the speakers
Keisha E. McKenzie, PhD, is a strategist who interprets communication, spirituality, and politics as social change technologies for common memory and collective intelligence. Since 2004, she has worked with nonprofit, educational, and faith-based organizations on communication and development strategy, organizing, research, facilitation, and program management. She is the national director for narrative and culture at Everyday Democracy. Keisha co-hosts Moral Repair: A Black Exploration of Tech, a PRX podcast; publishes the newsletter On Tomorrow's Edge; and is an inaugural Rooted in Resilience Fellow at Faith Matters Network. Educated in the UK, Jamaica, and West Texas, Keisha has trained in English, law, political science, technical communication and rhetoric, and systems thinking. Her graduate research considered how accessible reports on weapons of mass destruction primed the public for the 2003-2011 Iraq war and ways multidisciplinary groups can work through difference to solve complex problems.
Russell Robinson is Walter Perry Johnson Professor of Law at Berkeley Law School. Robinson graduated with honors from Harvard Law School (1998), after receiving his B.A. summa cum laude from Hampton University (1995). Robinson clerked for Judge Dorothy Nelson of the Ninth Circuit Court of Appeals (1998-99) and for Justice Stephen Breyer of the U.S. Supreme Court (2000-01). He has also worked for the U.S. Department of Justice, Office of Legal Counsel (1999-2000) and the firm of Akin, Gump, Strauss, Hauer and Feld in Los Angeles, practicing entertainment law (2001-02). Robinson’s scholarly and teaching interests include anti-discrimination law, race and sexuality, law and psychology, constitutional law, and media and entertainment law.
Key Takeaways
Protest in front of the Supreme Court during oral arguments in 303 Creative LLC v. Elenis (Victoria Pickering, 2022)
In cases like Masterpiece Cakeshop v. Colorado Civil Rights Commission and Fulton v. City of Philadelphia, religious conservatives have filed suit seeking religious exemptions from civil rights laws so they can deny services to LGBTQ people.
Unlike earlier religious exemption lawsuits, where business owners sought the right to engage in racial segregation, the Supreme Court has been highly receptive to claims for the right to refuse goods and services to LGBTQ people. Their decisions have frequently failed to recognize the emotional and dignitary harm of being turned away because of who you are, instead noting that LGBTQ people can access goods and services from other businesses–a line of reasoning rejected in earlier suits.
Black communities, even those that hold religiously conservative views on sexuality, are among the least supportive of providing religious exemptions from civil rights laws. Black faith communities have also not been heavily involved in recent litigation efforts to gain religious exemptions from civil rights laws. This may, in part, be due to a mistrust of the current U.S. legal system as an effective institution for guarding the rights and interests of Black people, given the Court’s recent rulings on issues like voting rights and affirmative action.
Reflection Questions
Charlie Craig and David Mullins in front of the Supreme Court after Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission was argued (Victoria Pickering, 2017).
In this session, Prof. Robinson posits, “I think we need for those of us that are spiritual a discourse of care, and to try to infuse that into the law instead of thinking this is all about who has the right to insult and hurt somebody else.” What do you think this means? What would it look like to infuse the law with a “discourse of care”?
Dr. McKenzie offers a set of “core principles” for protecting religious liberty, including that “religion shouldn't be absolute over all other” rights, that it “should be non-discriminatory,” and “not coerc[ive],” that it should be protected in “a neutral way,” and that it should bolster democracy and pluralism. What do you make of these core principles? Are there any you disagree with? Would you add any others? How might these core principles interact or be applied to real-world conflicts and legal cases?
The speakers began this session by speaking about how their personal histories–including their race, religion, nationality, sexuality, education, and family life–have influenced their understanding of religious liberty. How has your personal history and identity influenced your thinking on religious liberty?
Further Reading
Russell K. Robinson, What Christianity Loses When Conservative Christians Win at The Supreme Court, Supreme Court Review (2021)
Watched this session of the curriculum and have some thoughts? We’d love to hear from you.