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My goal in this piece is to surface some of the commonalities between religious belief liberty and sexual orientation identity liberty and to offer some public policy suggestions for what to do when these liberties conflict. I first want to make transparent the conflict that I believe exists between laws intended to protect the liberty of lesbian, gay, bisexual and transgender ("LGBT") people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws. I believe those who advocate for LGBT equality have downplayed the impact of such laws on some people's religious beliefs and, equally, I believe those who have sought religious exemptions from such civil rights laws have downplayed the impact that such exemptions would have on LGBT people. Second, I want to suggest that the best framework for dealing with the conflict between some people's religious beliefs and LGBT people's identity liberty is to analyze religious people's claims as belief liberty interests under the Due Process Clauses of the Fifth and Fourteenth Amendments, rather than as free exercise claims under the First Amendment. There were important historical reasons for including the First Amendment in our Constitution, with its dual Free Exercise and Establishment Clauses. But the First Amendment need not be understood as the sole source of protection for religious people when the claims they raise also implicate the type of liberty interests that can legitimately be considered under the Due Process Clauses of our Constitution.

Publication Citation

72 Brook. L. Rev. 61-123 (2006)