Thursday, April 1, 2021
Kyle Velte, The Nineteenth Amendment as a Generative Tool for Defeating LGBT Religious Exemptions, Minnesota L. Rev. (forthcoming)
In the summer of 1920, women gained the right to be free from discrimination in voting when the Nineteenth Amendment was ratified. One hundred years later, in the summer of 2020, LGBT people gained the right to be free from discrimination in the workplace when the U.S. Supreme Court ruled in Bostock v. Clayton County that sexual orientation and gender identity (“SOGI”) discrimination is sex discrimination under Title VII. Yet, LGBT people continue to face discrimination in many contexts, a prominent example of which is the national campaign by Christian business owners to obtain religious exemptions from state public accommodation laws. What does women’s suffrage have to do with today’s religious exemption debates? This Article contends that there is a through-line from a radical, antisubordination strand of the history of the Nineteenth Amendment to today’s fight over religious exemptions from SOGI antidiscrimination laws.
The antisubordination strand of Nineteenth Amendment history envisioned women’s suffrage as about more than just the right to cast a ballot. This capacious view of the Nineteenth Amendment—as a means of dismantling sex-based hierarchies and ensuring full citizenship rights regardless of sex—would allow women to engage in all aspects of life, both political and civic. Between the ratification of the Nineteenth Amendment and today’s battles over SOGI religious exemptions stands 100 years of sex discrimination law. That era saw state legislatures enact public accommodation laws prohibiting sex discrimination in the public square; these laws extended to women the right of civic engagement and thus full citizenship. This body of sex discrimination law included the Court’s 1984 decision in Roberts v. United States Jaycees, which involved a challenge to one such law. The Jaycees Court upheld a public accommodation law against a claim that enforcement of the law—which would compel the Jaycees organization to admit women as full members—would violate the Jaycees’ First Amendment free speech rights. The Court reasoned that states have a compelling interest in eradicating sex discrimination in public. Jaycees expands the reach of the equality-enhancing aspect of the suffrage movement. It embodies the antisubordination strand of the women’s suffrage movement and stiches it into the fabric of the legal doctrine governing sex discrimination.
In today’s religious exemption cases, the Christian business owners argue that although the state has a compelling interest in eradicating race discrimination in the public square, it does not have a compelling interest in eradicating SOGI discrimination. This distinction, they argue, dictates that an exemption be granted vis-à-vis SOGI discrimination, even though such an exemption would be rejected vis-à-vis race discrimination. Bostock is the contemporary bridge that connects Jaycees to the SOGI religious exemption cases. Jaycees, in turn is the bridge back to the radical strand of the Nineteenth Amendment’s history: The Nineteenth Amendment was generative not simply of the right to vote, but of a commitment to full citizenship rights regardless of sex. That equality was formalized in state public accommodation laws, which Jaycees teaches serve a compelling state interest. Bostock, when coupled with Jaycees, directs the same conclusion for public accommodation laws that prohibit SOGI discrimination, namely that such laws serve a compelling state interest that defeats claims for religious exemptions.