Social Issues

A new conservative Supreme Court justice could boost religious rights at the cost of LGBTQ protections

By Samantha Schmidt and Sarah Pulliam Bailey
September 22, 2020 at 11:20 a.m. EDT

A conservative replacement for Supreme Court Justice Ruth Bader Ginsburg, who died on Friday, could provide a major boost to religious rights while threatening years of advancements for the LGBTQ community, legal experts and activists say.

In cases spanning same-sex marriage rights to workplace protections, the Supreme Court has in recent years delivered landmark victories to gay and transgender Americans. But these watershed rulings have also left unresolved the polarizing conflict between those who want to safeguard religious rights and those who want to expand LGBTQ protections.

Ginsburg not only played a critical role in voting in favor of LGBTQ rights but also voted to keep religious exemptions within narrow boundaries, said David B. Cruz, Newton Professor of Constitutional Law at the University of Southern California Gould School of Law. Her absence, and her replacement by a conservative justice, could help tip the scale toward curtailing LGBTQ rights.

“It’s going to be a continuing refinement of the line where religious freedoms prevail and where anti-discrimination protections prevail,” said Paul Smith, a professor at Georgetown Law School who argued the landmark 2003 Supreme Court case Lawrence v. Texas, in which the court ruled that laws prohibiting private activity between consenting gay adults are unconstitutional.

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Samantha Schmidt
Samantha Schmidt is a reporter covering gender and family issues. Follow https://twitter.com/schmidtsam7

Sarah Pulliam Bailey
Sarah Pulliam Bailey is a religion reporter, covering how faith intersects with politics and culture. She runs The Washington Post's religion vertical. Before joining The Post, she was a national correspondent for Religion News Service. Follow https://twitter.com/spulliam