Yesterday, Justice Amy Coney Barrett heard oral arguments for the first LGBTQ rights case of her judicial career, and it’s a big one. Fulton v. City of Philadelphia asks the Supreme Court whether religiously affiliated adoption agencies can legally refuse to match foster children with same-sex households. The stakes couldn’t be higher, and Barrett’s disposition couldn’t be more mysterious.
During Barrett’s four-day confirmation hearing last month, several Democrats asked her to comment on the major LGBTQ rights cases of the last 20 years — cases like Lawrence v. Texas, which protects gay adults’ right to consensual sex, and Obergefell v. Hodges, which guarantees marriage equality — but she refused. Instead, she dispensed a statement that reads more like a corporate anti-discrimination policy than a judicial philosophy: “I do want to be clear that I have never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference.”
When it comes to cases like Fulton, this reassurance is hollow. The question at the core of major LGBTQ rights cases isn’t just whether the justices believe in equality. It’s whether they understand history — and the way the religious right has bastardized it to justify LGBTQ discrimination.
Conservatives’ dissents in cases like Obergefell — and their recently renewed support of Kentucky clerk-turned-YouTube-sensation Kim Davis — are based in the belief that homophobia as we know it is a fundamentally Christian practice. But a cursory look at religious history reveals that that isn’t true. I don’t mean to suggest that the Bible endorses gay rights, but the homophobia of yore wasn’t the pride-flag-burning kind. Rather, same-sex intimacy was one of a host of non-procreative sexual behaviors condemned under the umbrella of sodomy. Hardly an alias for homosexuality, the concept of sodomy held same-sex intimacy on the same plane as, say, oral sex between married heterosexuals.
Categorical prohibitions of sodomy never held much weight in the U.S. According to Yale law professor William Eskridge’s “Gaylaw: Challenging the Apartheid of the Closet,” there were only 11 reported sodomy cases nationwide between 1880 and 1895. Of those, only four were for same-sex intimacy.
For most of American history, gay rights were not a religious battleground. As late as the 1970s, religious organizations stood by their gay parishioners and condemned LGBTQ discrimination. In his book “Why Marriage: The History Shaping Today’s Debate Over Gay Equality,” historian George Chauncey explains that many mainstream Protestant churches — the Lutherans, Methodists, Episcopalians and Presbyterians, among others — issued official statements “affirming that homosexuals ought to enjoy equal protection under criminal and civil law.” In 1974, the National Federation of Priests’ Councils, the United States’ first Catholic ministerial organization, passed a similar resolution. And a Catholic gay group called DIGNITY (now DignityUSA) spread quickly with the help of priests who lent parish facilities and spiritual guidance to DIGNITY’s devoted followers.
This all changed in the late ’70s, when Anita Bryant, the famous conservative orange juice brand spokeswoman from Florida, turned the religious right against the gay cause. Bryant saw the writing on the wall: Stonewall had mobilized LGBTQ Americans into a full-fledged movement, and soon enough, the LGBTQ community would enter the American mainstream. Social conservatives, not religious leaders, saw this as a threat to the decidedly heterosexual American family.
Over the course of the previous century, progressives had successfully attacked institutional racism and sexism through the courts, in cases like Brown v. Board. Conservative opposition to minority rights, framed in secular terms, had failed to persuade federal judges. Bryant and her followers must have feared that, if nothing changed, the LGBTQ community would be next in a line of protected minorities.
So, Bryant pursued a new path. According to Chauncey, she took out full-page newspaper ads linking homosexuality with anti-Christian imagery — perversion, molestation. In an effort to trigger First Amendment protections, she mobilized Christian conservatives to fold homophobia into their religious rhetoric, nestling an antigay political agenda between the thin pages of scripture. She made “religious freedom” shorthand for homophobia because secular hate had become legally untenable.
It was everyday Christian Americans, not church authorities, who fell into Bryant’s trap. Religious leaders knew that modern homophobia was not a sacred mandate, something that descended from God, through religious authorities, into the hearts of Christians. It was a populist ideology, defined by its scapegoat, shoved into Christianity at the request of social conservatives. Power-hungry preachers, like millionaire Baptist televangelist Jerry Falwell, created new religious communities to embrace American homophobia, but such communities were hardly rooted in tradition.
Bryant, Falwell and the social conservatives of the ’70s and ’80s took a risk, and, in some ways, it paid off. While LGBTQ activists have won recent victories in the Supreme Court, protection of LGBTQ rights is not baked into the legal system as other protections are. Supreme Court precedent instructs judges to use “strict scrutiny” when examining potentially racist laws, and “intermediate scrutiny” when examining potentially sexist laws, but it says nothing about laws or policies that discriminate on the basis of sexual orientation. So, each time a so-called religious freedom case comes before the Court or a new justice is appointed, LGBTQ rights hang in the balance.
We won’t know until tomorrow, when the Supreme Court releases recordings of the oral arguments in Fulton, exactly what tone the adoption agency’s lawyers took. But if their track record is any indication, they likely invoked the strategy of Anita Bryant, rewriting religious history to protect their antigay bias.
It’s hard to predict how Amy Coney Barrett will rule in this case. On the one hand, she’s a privately religious person. In 2015, she signed a letter endorsing “marriage and family [as] the indissoluble commitment of a man and a woman.” On the other hand, she’s a distinguished academic and self-proclaimed textualist who may be less susceptible than other conservatives to intentional misreadings of the Bible. By all means, Barrett should protect our freedom of religion. But in doing so, she must remember that it is her job to parse what is faith and what is hate.
MATT NADEL is a senior in Hopper College. Contact him at firstname.lastname@example.org.