Half a decade after the Supreme Court’s same-sex-marriage decision, the justices and Congress are still trying to figure out what federal law should say about LGBTQ rights.
Roughly half of americans think federal law bans discrimination on the basis of sexual orientation. Despite four years of nationwide same-sex marriage, despite rapidly growing cultural acceptance for LGBTQ people, despite extensive annual Pride celebrations—these Americans are wrong. Now that all of this summer’s glitter floats have been dismantled and the rainbow confetti has been cleared, lawyers, legislators, and judges have turned back to the ongoing fight over whether federal law does, and should, specifically protect LGBTQ people from being fired, denied a rental lease, or refused service because of their sexual orientation or gender identity.
This year will mark several important milestones in the battle over LGBTQ discrimination. In the spring, the House of Representatives passed the Equality Act, a sweeping bill that would prohibit anti-LGBTQ discrimination in all aspects of public and commercial life, without any religious exemptions. While the bill has basically no chance of gaining traction in this Senate, if Democrats sweep Congress in 2020, it will likely be high on the party’s priority list. In the fall, the Supreme Court will hear arguments in the case R. G. & G. R. Harris Funeral Homes v. EEOC & Aimee Stephens, about a former funeral director who was fired after coming out to her employer as transgender. The justices will consider whether existing workplace protections in Title VII of the Civil Rights Act of 1964 already cover discrimination on the basis of gender identity.
And yet, the legal status of LGBTQ rights remains murky. As the movement has gained cultural momentum, activists have largely moved away from a posture of compromise—they believe they can win full protections for LGBTQ people in any context, without exceptions. A small but significant group of conservative religious leaders has been working the middle ground, trying to build support for a bill that would protect LGBTQ people but leave space for institutions, such as Christian colleges and Catholic hospitals, to operate according to their religious teachings. But they’ve faced resistance from their right, with prominent pastors and conservative legal groups opposed to any kind of bill that would mark sexual orientation and gender identity as special legal categories.
As America has largely moved on from its gay-rights moment, with many Americans believing everything got taken care of with same-sex marriage, legal advocates on both sides have been left with bitter disagreements about where the country should go next—and the possibility that the status quo will perpetually remain in place.
Americans don’t agree on whether LGBTQ discrimination actually happens. Conservative advocates argue that LGBTQ people face little to no discrimination, and that their identities have been normalized—LGBTQ folks are featured on TV shows and in movies, and many businesses have voluntarily crafted their own nondiscrimination policies. Ask LGBTQ people themselves, however, and they consistently see discrimination in their daily lives: A recent study from the Williams Institute at UCLA found that lesbian, gay, and bisexual people reported much higher rates of being bullied, fired, or denied a job, promotion, or lease compared with heterosexual people. In a 2015 survey of transgender Americans, 30 percent of respondents with jobs reported experiencing workplace discrimination of some kind within the prior year; a quarter said they encountered some form of housing discrimination.
Still, these experiences can be subtle or hard to document. And the incentives for bringing a formal, legal complaint vary wildly, depending on where someone lives: 20 states fully prohibit discrimination based on sexual orientation and gender identity, while 28 states don’t. (Two others—Wisconsin and Utah—bar some kinds of discrimination, but not others.) “Because it doesn’t look just like Jim Crow,” said Doug NeJaime, a law professor at Yale University who focuses on LGBTQ legal issues, conservatives argue that “it then doesn’t merit attention.” But, he said, “there’s lots of reasons why discrimination against LGBT people looks different than other forms of discrimination … [That] doesn’t mean it’s not discrimination that needs to be remedied.”
Early legislation proposing civil-rights protections for gays and lesbians was often hedged: Advocates focused on issues such as workplace discrimination, where they thought they had a greater chance of victory. Roughly five years ago, however, the strategy among advocates began to shift: Public perception had become much more favorable, and leaders believed they could set more ambitious political and legal goals. Activists began calling for a comprehensive bill without religious exemptions.
As all of this was happening on the legislative side, the courts were also working through what the law already says about LGBTQ rights. In the past 30 years, the Supreme Court has ruled sex stereotyping illegal; declared sodomy bans unconstitutional; struck down state measures blocking civil-rights protections for gays, lesbians, and bisexuals; and, of course, legalized same-sex marriage in all 50 states. But even as the inevitability of legalized gay marriage was becoming clear in the early 2010s, “the narrative really began to take hold that you could be married on Sunday and fired on Monday and lose your housing on Tuesday,” Sarah McBride, the national press secretary at the Human Rights Campaign, a prominent LGBTQ-rights advocacy group, told me. “That really brought into starker contrast the absurdity of the lack of explicit protections.”
This question has been particularly fraught for transgender people, such as the plaintiff who will go before the Supreme Court this fall. LGBTQ legal advocates have argued with mixed success that sex stereotyping, or discriminating against people based on their failure to live out societal norms for men and women, necessarily includes discrimination against transgender people. They argue that those who discriminate against transgender people because of their gender identity are already breaking the law—a claim the Supreme Court will soon consider in the Harris Funeral Homes case.
Because advocates are arguing that trans protections already exist in the law, but still need to be written into the law via the Equality Act, some critics have accused them of hypocrisy. Activists “are talking out of both sides of their mouths,” wrote Greg Baylor, the senior counsel for government affairs at the Alliance Defending Freedom, a conservative legal firm that advocates for religious liberty, in an email. “While arguing in court that Title VII already includes sexual orientation and gender identity, they are simultaneously urging Congress to add these categories.”
Mara Keisling, the head of the National Center for Transgender Equality, told me she is “confident the courts will eventually come down on our side.” Until that happens, however, “we do need these laws to explicitly name us, if for no other reason than it is better public education,” she added. “And public education is one of the most important parts about ending discrimination.”
Ironically, as LGBTQ rights have expanded, it has become harder for advocates to make their case to the public. Before the Supreme Court legalized gay marriage, “people could see very clearly the fact that same-sex couples couldn’t get married,” McBride said. “People have a more difficult time understanding the way civil rights work in our country, the absence of protections.” The movement has also developed powerful allies from Wall Street to Hollywood, and those alliances have been used against advocates. “The way in which the business community has embraced LGBT rights has played into the narrative that some on the right want to put out, which is that the LGBT community is not some vulnerable minority,” NeJaime said. “The irony about antidiscrimination laws is: Vulnerable groups don’t get protected until they’re actually … [able to] muster the political power to gain momentum.”
Still, that momentum has redoubled the resolve of LGBTQ activists. Maybe they won’t win at the Supreme Court this time, or get nondiscrimination legislation passed through this Congress. But, they believe, theirs is a cause of progress. They will eventually win it all.
And that has left a number of their opponents very, very nervous.
When the equality act passed in the U.S. House of Representatives this spring, there were no amendments on the floor—it was just an up or down vote. “It’s what a lot of people would call a messaging bill,” said Tyler Deaton, a Republican strategist who works with GOP politicians to support LGBTQ rights. It was a powerful message indeed. The legislation won the vote of every Democrat in the House who participated in the roll call, along with eight Republicans—a clear sign of its broad support. The bill also sent another message: The days of compromise are over.
In recent years, claims of LGBTQ rights have been repeatedly brought into direct conflict with claims of religious conscience. Just this week, the Trump administration proposed a new rule that would allow federal contractors to make hiring and firing decisions based on their religious beliefs and practices; progressive advocates believe the rule will be used to target LGBTQ people. The most notable court cases have involved wedding vendors: conservative, religious cake bakers, photographers, and florists who don’t want to participate in same-sex wedding ceremonies. The outcomes of these conflicts have been mixed, but they’ve made progressive LGBTQ advocates even more determined to eliminate the “gaping religious exemption,” as McBride put it. The Equality Act specifically bars any group from using the Religious Freedom Restoration Act, known as RFRA, to try to opt out of the bill’s protections.
For religious groups and institutions that teach that homosexuality is a sin, and that men and women were created as such by God, the prospect of this kind of legislation is worrying. “It would be years of litigation—that’s what we would look forward to under the Equality Act as currently drafted,” Shirley Hoogstra, the president of the Council for Christian Colleges and Universities (CCCU), told me. For the nearly 140 Christian institutions that are members of her organization, she said, the bill “would put federal funding, it would put accreditation, it would put hiring rights, it would put campus student-life policies all at risk.” Fundamentally, these kinds of groups want to be able to preserve what they see as religious integrity in their own spaces—and they object when that is described as bigotry. “The Equality Act as currently drafted has caused Christian institutions to really wonder about whether their particular educational contribution is valued in America,” Hoogstra said.
Hoogstra has been part of a coalition pushing an alternative to the Equality Act called Fairness for All. Her organization, along with groups such as the Church of Jesus Christ of Latter-day Saints and the Seventh-day Adventists, believes federal LGBTQ discrimination protections are inevitable—the Equality Act’s passage “was a proof point,” Hoogstra said. They want the final law, whenever it passes, to reflect their needs. Broadly speaking, Fairness for All–style legislation would prohibit discrimination on the basis of sexual orientation and gender identity, but provide exceptions for certain religious institutions, including schools—much like exceptions that were written into parts of the original Civil Rights Act of 1964, which outlawed discrimination based on race, color, religion, sex, or national origin.
So far, this effort has not won any of the public Republican support necessary to make Fairness for All a plausible competitor to the Equality Act. Many Republicans may not see this as a worthwhile way to spend political capital, or remain opposed to establishing any LGBTQ rights in federal law. But the bill’s boosters still see the possibility of a strong coalition between religious-freedom advocates and LGBTQ-rights supporters. “If you canvass LGBT activists or professional LGBT organizations, some of the people that are the most favorable … are heads of equality organizations in red states,” said Tim Schultz, the president of the First Amendment Partnership, a group that has worked on crafting consensus between LGBTQ-rights advocates and religious conservatives.
LGBTQ people in these states generally have no legal recourse against discrimination outside of local and municipal ordinances, which provide only a patchwork of protection. Jeff Graham, the executive director of Georgia Equality, an advocacy group in the state, said he doesn’t necessarily support sweeping religious exemptions, but “I do support us being in dialogue and having a respectful conversation with people of faith … We need to make sure that small-business owners understand that there is not a big agenda out to … hurt them or their businesses.”
Before Fairness for All has truly even launched, however, those seeking an accord have faced major backlash from their backyard. When the evangelical World Magazine broke the news that the CCCU and the National Association of Evangelicals (NAE), which claims to represent roughly 45,000 churches, had voted to support the Fairness for All effort, a prominent group of conservative religious leaders signed a letter of condemnation. Laws that provide specific protections for sexual orientation and gender identity “empower the government to use the force of law to silence or punish Americans who seek to exercise their God-given liberty to peacefully live and work consistent with their convictions,” they wrote, and “treat reasonable religious and philosophical beliefs as discriminatory.” The signers included Franklin Graham, the evangelist Billy Graham’s son, who has been known to make inflammatory comments about homosexuality; but also Russell Moore, the head of the Southern Baptist Convention’s political arm, who is often seen as a moderating voice in the evangelical world. The NAE has since backed away from full support, citing its “desire to appropriately acknowledge and respect differences among evangelicals.”
All of this complicates the picture of what might come next. If the Democrats make a full electoral sweep in 2020, holding on to the House, taking back the Senate, and winning the White House, it seems likely that the Equality Act will be on their agenda—and it’s unlikely the party’s leadership will be open to finding a middle ground. Meanwhile, the groups totally opposed to this kind of legislation are preparing for legal war. The hard dichotomy between religion and LGBTQ rights is false—a majority of lesbian, gay, bisexual, and transgender people are themselves religious, and many faith groups welcome and affirm them in their congregations. When it comes to the legal and legislative battlefield, however, that nuance all but disappears.
It’s as true in culture as it is in physics: For any action, there is an equal and opposite reaction, and America seems to be going through one such moment now. In the past five years, public support for people refusing to serve LGBTQ people when it violates their religious beliefs has crept up steadily: Almost a third of Americans, and nearly half of Republicans, say this should be legal, compared with 16 percent and 21 percent, respectively, in 2014. The story of the LGBTQ movement has lately been one of triumph, but it’s not clear whether that will continue. Graham, of Georgia Equality, told me he believes some kind of federal legislation will eventually protect LGBTQ people from discrimination, “but I’m not optimistic that it will happen quickly,” he added. In this political environment, the possibility of moderation and dialogue seems almost antiquated. “It really feels,” he said, “like everything is a battle for the soul of the nation.”
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EMMA GREEN is a staff writer at The Atlantic, where she covers politics, policy, and religion.