abstract. This Essay highlights the threat claims for religious exemptions to antidiscrimination laws pose to the diverse family arrangements that now populate society. It argues we should not abide efforts to thwart, undermine, and ultimately overturn advances in equality norms in the family based on religious belief. The promise of nondiscrimination laws for our families and our ability to move freely in the public sphere is undercut if LGBTQ+ people and women must confront actual or metaphorical, embraced by the courts, “Your kind of family is not welcome here.”

Introduction

For many years, the American family trope resembled a kind of Leave It to Beaver mythical archetype, featuring a white male head of household, his white stay-at-home wife, and their two children. This trope was false and exclusionary in many respects. To begin, the family was white. Single parents, working mothers, and intergenerational families—all of which are more likely to be or consist of people of color1—are missing from the picture. One parent can afford to stay at home, and the family lives in a detached house that they own. The family roles are gendered and the couple heterosexual. While we all now know this trope stands for few families and perhaps even fewer aspirations, it persists to this day, with the assumption still being that women are the primary caregivers; that if a woman wearing a wedding ring buys two coffees, one is for her husband, not her wife;2 that chosen families include two adults; and that women are wanting—perhaps even monsters—if they do not embrace motherhood.3

There are, of course, significant advances that have begun to broaden our understanding of the family. Today, as a matter of law, same-sex couples can marry, be foster parents, and adopt.4 Assisted reproduction has facilitated parenthood for same-sex couples and people seeking to single-parent. People have a greater ability to decide whether and when to parent, and women who parent continue to work out of need, as always, but also out of desire. Culture is making this change possible, as is law, even if the law may not always appear in family-law casebooks.

These legal developments, and the freedom they represent, are, however, under attack. Specifically, these advances are challenged in the name of religious freedom, with the avowed goal of returning to the Leave It to Beaver trope. These religious-freedom arguments are most often discussed as challenges to civil rights.5 This Essay highlights the less-often discussed threat that religious exemptions to antidiscrimination laws pose to the diverse family arrangements that populate our society. Part I discusses current religious-freedom challenges, and Part II speaks to the courts’ changing response to these challenges. Finally, Part III argues that we should not abide efforts to thwart, undermine, and ultimately overturn advances in equality norms in the family based on religious belief.

This Essay focuses on claims for religious exemptions made by institutions, most often institutions that serve the public, whether businesses, foster care agencies, or hospitals. This is the space most regulated, subject to antidiscrimination rules, and thus the focus of legal disputes about religious exemptions. It is also the space in which the religious exemptions to antidiscrimination rules will do the most harm.6

I. the current contest

The cultural and legal vision of the family is undergoing profound change. Gone are the bans on same-sex couples marrying and adopting and fostering children. One in three children live in a single-parent household,7 the percentage of women who have never married and who have children is increasing,8 stay-at-home parents are increasingly fathers,9 and most children live in families in which all the adults work.10

But these changes are resisted in the name of religious freedom. The United States Conference of Catholic Bishops’ amicus brief in Obergefell v. Hodges, for example, left no doubt about their vision of appropriate family and gender roles: “If same-sex partnerships were recognized as marriages . . . no civil institution would any longer reinforce the notion that children need both a mother and father; [and] that men and women on average bring different gifts to the parenting enterprise . . . .”11 The Bishops warned of what would come were the Court to recognize, as it did, a federal constitutional right for same-sex couples to marry. They promised “church-state conflict for generations to come” that would embroil the federal courts, “pitting claims of constitutional right squarely against one another . . . until one or the other is diminished.”12 The conflict, they predicted, “may be even greater than [that surrounding] abortion.”13

The conflict between religious rights and LGBTQ+ equality is charged and consequential. Citing their religious beliefs, institutions object to recognizing the marriages of same-sex couples. Businesses—most famously the Masterpiece Cakeshop bakery—claim a right to refuse to provide wedding-related services to same-sex couples.14 Religiously affiliated schools assert a right to fire teachers and other staff if they marry someone of the same sex.15 County clerks and civil judges object to recognizing marriages of same-sex couples.16 And employers assert a right not to comply with state laws requiring insurance coverage for partners in same-sex marriages on the same terms as for different-sex couples.17

Institutions are also refusing to serve same-sex couples seeking to parent. Catholic Social Services (CSS) and other agencies object to complying with requirements that—as a condition of securing a government contract to screen foster parents—they not discriminate against same-sex couples.18 And medical institutions have argued that they have a right to refuse to provide artificial insemination to a woman because her partner was a woman.19In these and other cases, institutions have argued that their faith ensures their right not to comply with antidiscrimination laws.

Institutions also resist more longstanding precedents aimed at advancing women’s independence and equality, both within and outside the family. For example, religiously affiliated institutions argue that they have a right to fire women who are pregnant and unmarried, or who have used assisted reproductive technologies, in violation of federal laws prohibiting sex discrimination, including pregnancy discrimination.20

Central to the family-law context is resistance to abortion and contraception access. Rules requiring insurance coverage for contraception as part of the Affordable Care Act met with fierce resistance in the name of religion, with more than one-hundred lawsuits filed challenging the rules.21 State laws requiring insurance plans to cover abortion where they already cover other pregnancy-related care have similarly given rise to lawsuits predicated on religious freedom.22 Providers have even challenged on religious-freedom grounds laws that require them to inform patients of treatment options and provide referrals if they refuse to provide services based on their religious beliefs.23

These are family-law issues for several reasons. The ability to decide whether and when to have children is fundamental to the ability to define one’s family. Laws providing access to contraception and abortion—and resistance to those laws—are also central to family law because of their import for disrupting traditional gender roles within families.24 They are about control, a promise of independence, and resistance to the longstanding centrality of motherhood in any vision of women. The Supreme Court has recognized:

The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture.25

Contraception and abortion have played a critical role in liberating women from the traditional conception of the family in which only the (white) man had a right to vote because he was to represent the interest of the family (and those he owned).26 As the Casey Court stated, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”27

These cases are about the family, the changing norms our laws reflect and foster, and a concerted effort to revert to “laws and precedent that recognize the important differences between men and women and honoring God’s design for marriage between one man and one woman.”28

II. the legal landscape

For decades, courts have rejected religious resistance to emerging antidiscrimination rules affecting the family.29 For example, in Loving v. Virginia, the Supreme Court struck down Virginia’s ban on marriage for interracial couples.30 The Loving Court quoted—and repudiated—the trial court’s faith-based reasoning about bans on interracial marriage:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.31

Several years later, the Court rejected Bob Jones University’s claimthat the government infringed on its free-exercise rights when it denied the university tax-exempt status as a charitable institution because it barred students who advocated or engaged in interracial dating.32 The Court reasoned that the government had “a fundamental, overriding interest in eradicating racial discrimination in education—discrimination that prevailed, with official approval, for the first 165 years of this Nation’s constitutional history.”33 That interest outweighed whatever “burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.”34

Courts also rejected free-exercise arguments that threatened gender equity inside and outside the family. They dismissed arguments that Bible teachings, which assert that “the husband is the head of the house, head of the wife, head of the family,” justified lower pay for women.35 More recently, the highest courts of New York and California rejected free-exercise challenges to state laws requiring employer-based insurance plans that covered prescription drugs to include prescription contraceptives.36 And the Ninth Circuit found wanting a pharmacy’s faith-based challenge to a law requiring that it fill prescriptions for contraception.37

The initial trend was also promising for diverse family arrangements. In Hawaii, New Mexico, Oregon, and Washington, state courts ruled against businesses arguing that antidiscrimination laws requiring them to serve same-sex couples violated their religious freedom.38The California Supreme Court rejected a medical practice’s assertion that it had a free-exercise right to refuse to artificially inseminate a woman in a same-sex relationship.39 A number of state courts similarly rejected landlords’ claims of a free-exercise right to refuse housing to unmarried couples.40 And federal courts rejected employers’ claims of a religious right to fire women who were unmarried and pregnant.41

Time and again, courts recognized the state’s interest in advancing equality and rejected claims for religious exemptions. They did so even before the Supreme Court in Employment Division v. Smith stopped applying heightened scrutiny to incidental burdens on religious exercise.42 Diverse visions of family—most rooted in the Constitution—retained robust protection in the law.

But the pattern is changing. In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held that the Affordable Care Act rule requiring insurance to cover contraception violated the Religious Freedom Restoration Act where it did not allow objecting businesses to opt out by signing a form noting their objection, and then the insurance company would provide coverage.43 In Zubik v. Burwell, the Court did not reject employers’ even more audacious and attenuated claim that simply signing such a form violated their religious rights.44 In Our Lady of Guadalupe School v. Morrissey-Berru, the Court construed the ministerial exemption to bar teachers’ claims of employment discrimination, even where the job did not require the teacher to be of the faith.45 In Masterpiece Cakeshop, the Court invalidated the state’s enforcement action under its Anti-Discrimination Act where it found that the state had demonstrated hostility toward a bakery that refused to provide a cake for the wedding reception of a same-sex couple.46 And most recently, in Fulton v. City of Philadelphia, the Court ruled that the City violated the free-exercise rights of CSS when it denied the agency a contract to screen foster families because the agency refused to comply with the antidiscrimination rule, rejecting the notion that the City’s interest in enforcing its antidiscrimination policy satisfied strict scrutiny.47

The Court’s recent shadow-docket rulings further suggest that it may be moving toward a standard that favors religious-exercise claims.48 In the context of COVID-19 restrictions, the Court stated that government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, “whenever they treat any comparable secular activity more favorably than religious exercise.”49 It struck down COVID-19 restrictions on gatherings for in-home worship—no different from those for any in-home gathering—because the same limitations did not apply to hair salons, retail stores, and other businesses.50

These decisions are often described as narrow.51 They make no bold announcement, for example, that the Free Exercise Clause requires exemptions for institutions that object to complying with antidiscrimination rules. Their holdings do not announce a constitutional right to discriminate. At the same time, the Court’s recent jurisprudence on religious exemptions to antidiscrimination rules is radical for the change it suggests. The Court in Fulton, for example, makes no mention that what is at stake is government funding of discrimination.52 The Court suggests that there would be no harm in an agency refusing to serve a same-sex couple as long as it referred them elsewhere, brushing aside considerations of the dignitary and stigmatic harm of being turned away (not to mention that many may well be dissuaded from seeking service at all).53 The Court appears ready to indulge religious-freedom violations claims that rest on being complicit in an action far removed, often requiring other actors for realization.54 And the Court may be quicker to see discrimination in state efforts to enforce equality principles against those objecting than in the denial of equality to those the law was meant to protect.

For the purpose of this Essay, these decisions suggest that the work the law has done to reflect and protect diverse family arrangements is at risk.

III. the threat of religious exemptions to emerging visions of the family

At their core, today’s religious exemption cases present fundamental questions about the family. At stake is whether our laws will regress to privileging one kind of family—the white, heterosexual, gender-differentiated family—over others. This Part argues that these religious-exemption claims should be rejected—a position seemingly advanced less often as the threat to emerging visions of the family increases.55 This Essay offers five points in support of this argument.

First, it is important to remember that the family arrangements at stake enjoy constitutional protection. As a matter of constitutional law, the Supreme Court has recognized unmarried couples as families, and rejected notions that unwed fathers are unfit to parent.56 It has also rejected the notions that marriage is for procreation,57 women are to mother,58 and marriages of interracial59 and same-sex couples60 are illegitimate. Antidiscrimination laws codify the constitutional directives not only for the so-called public sphere, but also for the family.

The break from the LeaveIttoBeaver trope in constitutional law—a break from longstanding traditions that often aligned with dominant Christian values—is now decades old. In many cases, the recognition of these family configurations fosters profound changes in relationships outside the family as well. They further, and are furthered by, other equality norms. Drawing on its earlier decision in Planned Parenthood v. Casey, the Court made this point plainly in Lawrence v. Texas: “[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . ‘These matters . . . are central to the liberty protected by the Fourteenth
Amendment.’”61 No vision of racial justice or gay rights, for example, can be complete if it means that the law upholds segregation in love or accords a second-class status in law to some relationships. There can be no gender justice if people have no capacity to control whether and when to parent and if family must mean a woman being with a man. Thus, advocates propose to erode constitutional protections—and their enforcement through antidiscrimination laws —with religious exemptions.

Second, religious exemptions threaten the promise, both in law and in culture, to diverse families that they will no longer be punished for who they love, whether they marry, or whether and how they have children. The protections promised in Obergefell and antidiscrimination laws are undercut if the law allows businesses to refuse to sell flowers to a same-sex couple for their wedding or allows government-funded agencies to turn away couples that want to foster because of who they are. Protections for women’s independence in family are undermined if employers have a right to refuse to provide insurance coverage for contraception and abortion otherwise required by law, if the law protects firings of women who have a child while unmarried, if women can be paid less than men for reasons of religion, and if the law protects ambulances that refuse to transport people needing an abortion.62 Religious exemptions simply mean that the promise antidiscrimination laws hold for the family is punched through with holes.

Melissa Murray, too, sees the threat, characterizing religious exemptions as “shrink[ing] the public sphere—and the domain of state-endorsed laws and norms—while expanding the private sphere and the authority of private actors who operate outside of the state’s reach.”63 In that private sphere, old norms are enforced, and deviation is punished. In other words, the issue is not an objector like Masterpiece Cakeshop being kicked out of the public sphere, but rather an objector laying claim to shrink the reach of antidiscrimination rules and thus, in Murray’s words, undermine the “public apparatus structured to vindicate the public values of liberty and
equality.”64

The threat has a particular bite because the discrimination sanctioned by religious exemptions comes with the blessing of the government. When it grants exemptions, the government is authorizing private parties to discriminate and thus continuing to privilege some families over others. As Douglas NeJaime and Reva Siegel have remarked, “A legal system that provides expansive conscience exemptions . . . will align the public order with the belief system of the objector and against the rights to which the objector objects.”65 That comes with a great cost, as Justice Kennedy described in Obergefell: “[W]hen that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then
denied.”66And it is worse still when the government funds private actors—like foster care agencies— to engage in discrimination or itself engages in discrimination. In short, there is no way to understand exemptions as not posing a threat to diverse families and the promise of equality they represent.

The proposals for compromise often highlight the very problems of exemptions. Alexander Dushku advances a case for what he calls “creative pluralism” or a “sustainable settlement.”67 At the end of the day, the proposal is, broadly speaking, simply a call for religious exemptions. Even in public spaces, where he states that antidiscrimination proposals “should generally prevail,” Dushku asserts the exemptions should be “narrow and relatively rare.”68 But he also describes Masterpiece Cakeshop as a case of “true religious hardship” where equality must yield. If a main-street bakery qualifies, then Dushku offers no proposal for a limiting principle—and requires us to accept the idea that “just a little discrimination” is okay.69

The proposal that Dushku does spell out—the one specific to foster care and adoption services embodied in the Fairness for All bill—again highlights the harm of exemptions. The bill would require all states that accepted federal funding for foster-care and adoption services to permit foster-care agencies to discriminate—this is indeed what happens when an agency turns a couple away because they are same-sex—and to support that discrimination with government funds.70 Under the proposal, federal dollars to states for foster-care services would be conditioned on the states agreeing to a voucher model, by which families would receive a certificate from the federal government to use at foster-care agency. Foster-care agencies could turn families away based on sexual orientation, gender identity, or faith, as long as they provided a “reasonable referral.”71 The state would be responsible for ensuring that that there was at least one agency in the area or neighboring catchment that would accept the voucher and serve the family.72

Dushku suggests that this proposal is appropriate because foster care and adoption from foster care are “hybrid spaces,” meaning a mix of the public and the sacred.73 But foster care is a government function. The government has removed children from their homes and is responsible for their care until they return to their families or are adopted. Agencies receive taxpayer dollars to fulfill that government function;74 it is not any less a government function because many state and local governments choose to contract out this service to private agencies. Understood this way, it is hard to imagine a more direct challenge to diverse families than to sanction discrimination expressly in the government’s name.75

It is no answer that the agency that will not serve a same-sex couple must provide a referral. There is no way for the agency to send away a couple without communicating, “We don’t serve your kind here.” Moreover, such a system would mean that some families (e.g., those headed by heterosexual Christian couples) could choose from multiple agencies, permitting them to select the agency they like best and that is well-suited for their needs, while other families (e.g., those headed by same-sex couples or members of minority faiths) would have more limited options, possibly just one. Sanctioning such unequal treatment in government programs is stigmatizing for families and could deter them from pursuing foster care or adoption, undermining efforts to find families for children.76

There is no way around it. Exemptions undercut antidiscrimination measures; they sanction discrimination. It is not tolerance to build into our laws a right to discriminate.77

Third, make no mistake about the ultimate aim of the push for exemptions we now see. The aim is not to create a quiet enclave to which some people may retreat to live according to religious values no longer enshrined in the law. It is to contest the very change in family norms that the laws and policies being challenged aim to advance, and ultimately undermine and overturn the gains of the last half century for diverse family formulations. As NeJaime and Siegel expound, “[A]ccommodating religious objections may . . . enable the conflict to persist in a new, revitalized form. . . . [C]omplicity-based conscience claims can function as part of a long-term effort to contest society-wide norms.”78

In other words, the claims for religious exemptions ensure a continued challenge to the antidiscrimination rules and decisions that protect diverse family arrangements. Refusals to register marriages of same-sex couples, keep on staff those who marry a partner of the same sex, permit same-sex couples to foster, and provide goods and services to such couples are all ways of contesting the legitimacy of Obergefell and the protections afforded by laws barring discrimination based on sexual orientation. Refusals to provide abortion services, referrals, insurance, aftercare,79 and even ambulance services contest the legitimacy of the line of cases—federal and state—that afford constitutional protection for abortion. They contest the control, independence, and sexual freedom for women in constituting family. Exemptions keep alive a very public debate about the legitimacy of the new norms and the morality of those they protect. That’s the aim; few say it.

Fourth, religious exemptions do not foster peace or strengthen antidiscrimination norms by quieting those now loudly objecting.80 The history of abortions and exemptions is illustrative. In 1973, just months after the Supreme Court decided Roe v. Wade,81 Congress passed a law providing that neither institutions nor individuals can, by virtue of receiving federal funds, be required to perform abortions or sterilizations if such performance is contrary to the institution’s or an individual’s religious beliefs.82 Forty-four states currently permit healthcare institutions to refuse to provide abortion services, and forty-six states permit healthcare providers to similarly refuse.83 Many of these laws have been in place for decades. Since 2005, federal law has provided that federal, state, and local government agencies and programs now risk losing federal dollars if they “subject[] any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”84 While many factors contribute to the tenor of the modern debate over the abortion right, these accommodations have neither quieted the debate surrounding abortion nor resulted in a gentle change in attitude. Instead, there is litigation opposing even referrals, aftercare, and emergency services. And the demands for exemptions now extend to contraception. The storm will only quiet when there is no longer constitutional protection for abortion.

A similar pattern is emerging with LGBTQ+ rights. The complicity claims abound. There is now even a case of a funeral home refusing cremation services because the deceased was married to a man.85 Just as the U.S. Conference of Bishops warned, the efforts to undercut and undo marriage equality threaten to be as fierce as those surrounding abortion, and it will not stop until one side is “diminished.”86

Finally, we must return to that classic legal analytical exercise of asking, if we accept exemptions in the contexts of LGBTQ+ families and women’s role in families, would we accept them in other contexts? In particular, if the courts and culture rejected the notion of exemptions in the context of race and of women’s pay, why accept them in the context of the family formations discussed here?Of course, the history of Black people in America is not the same as that of LGBTQ+ people (and these categories are not exclusive). Nor is the history of women the same (and again these categories intersect). And the issue for this Essay is not whether the religious objections to the Civil Rights Act, to interracial marriage, to same-sex marriage, or to single women parenting, are honorable.87 The issue is, accepting that claims to exemptions on the grounds of religious belief are sincere, on what grounds would we reason differently about LGBTQ+ families or those making decisions about family size and timing than we did about free-exercise claims for race and women’s wages?88

IV. religious exemptions: the debate

This Essay may be cast as another piece that casts those of deep religious conviction as bigots, as a way of both affirming the sincerity of the beliefs addressed in this piece and directing anger at the critique of religious exemptions to increased protections for diverse family configurations. Those with sincere faith objections to marriage for same-sex couples, to women who parent without men, and to contraception and abortion surely struggle with changing norms and legal doctrines, and with charges that they are discriminating. But what is harder than change is not changing, given the stigma, violence, criminal penalties, and prejudice so long attending many of the family formations discussed in this Essay. As NeJaime has posited,

[T]hose defending views that society may soon come to condemn, but that are still debated, invoke the idea of bigotry in defense—as a way both to discredit their opponents (that their opponents unfairly brand them bigots) and to establish their own position as worthy of legal protection (that not treating them with respect and accommodating them through law is itself bigoted).89

We need to respect the sincerity of beliefs, but not cower in defense of protections for the many families that are not gender differentiated.

This Essay does not cower in the face of Dushku’s critique, nor does it offer a point-by-point response. Rather, I offer one reflection on his remarks. Dushku credits me with honesty. I wish he had been similarly candid about his approach. His “creative pluralism” is little more than a call to accept religious exemptions, cloaked in the language of civility to sound more palatable and to mask the uncivil consequences.90 His Essay advocates for the right of businesses that serve the public and agencies that receive government dollars to provide services to refuse to comply with antidiscrimination laws when an increasing number of such laws protect LGBTQ+ people. It is not civil for a retail store employer to deny you a health benefit guaranteed by law. It is not civil for women to be fired from religious schools if they are pregnant and unmarried when no men are fired for premarital sex. It is not civil to propose that the government create a list of those foster care agencies it funds where LGBTQ+ people can know they will not be turned away. There can be no honest debate or dialogue without greater candor about the consequences of these proposals.

Conclusion

“The personal is political” was a feminist cry of my youth, one that highlighted the connection between gender inequity in the family and broader political structures.91 Basic norms—men as heads of household, women as caregivers, rules of the home and workplace fostering women’s financial dependence—prevented any notion of equality in the home and outside. Today’s debate about religious exemptions and civil rights raises many of the same issues: They are about gender roles and norms in the family and the connection to broader equality norms, as well as our ability to move in the public sphere as LGBTQ+ people and women. The issue is whether we will break free, or whether religious exemptions to civil rights protections will leave us with the promise of equality yet facing metaphorical signs, “Your kind of family is not welcome here.”

Louise Melling is a Deputy Legal Director of the American Civil Liberties Union (ACLU) and the Director of its Ruth Bader Ginsburg Center for Liberty. The author would like to thank her ACLU colleagues from the Religious Refusals team for insights over the years that make this analysis possible; Leslie Cooper, Dan Mach, Douglas NeJaime, Ria Tabacco Mar, and Rose Saxe for comments on this Essay; and Ariana Arzani, Alie Bornstein, Grant Gebetsberger, Duncan Hosie, and Ricca Prasad for assistance with research. Thank you also to the editors of the Yale Law Journal who organized this Collection for their focus on family law and their editorial suggestions on this Essay.