Strange Bedfellows: Using Religious Rights to Protect LGBTQ+ Rights

By Morgan Munroe

July 2, 2026

Eleven years ago, when the U.S. Supreme Court ruled that the Constitution protects a right to same-sex marriage, Justice Clarence Thomas, writing in dissent, ominously warned that the decision would have “potentially ruinous consequences for religious liberty.”¹Obergefell v. Hodges, 576 U.S. 644, 734 (2015) (Thomas, J., dissenting). Justice Thomas’s warning reflected a shift in religious conservatives’ longstanding opposition to the rights of LGBTQ+ people:

Previously, social and religious conservatives had portrayed themselves as representing a majoritarian social order: they were defending Western civilization and its traditional moral values against a radical minority of immoral activists who were attempting to impose the “homosexual agenda” on unwilling majorities. . . . Now opponents of same-sex marriage—and indeed opponents of gay and transgender rights more generally—understood themselves as a beleaguered minority who were being oppressed by a powerful secular majority solely because of their sincere religious convictions.²Jack M. Balkin, Part I: Obergefell v. Hodges: A Critical Introduction, in What Obergefell v. Hodges Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Same-Sex Marriage Decision 3, 51 (Jack M. Balkin ed., 2020).

Increasingly, the narrative emerged that the constitutional rights of religious freedom and equal protection for LGBTQ+ people were on a collision course—either religious freedom would be oppressed by states protecting LGBTQ+ people from discrimination or LGBTQ+ rights would be oppressed by states allowing religious objectors to openly express and act upon their anti-LGBTQ+ beliefs.

Just three years after the Supreme Court legalized same-sex marriage, the Court again faced “difficult questions as to the proper reconciliation of . . . the authority of a State and its governmental entities to protect the rights and dignity of gay persons . . . [and] the right of all persons to exercise fundamental freedoms under the First Amendment.”³Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617, 623–24 (2018). The case involved a baker who had refused to create a wedding cake for a gay couple based on his religious objections to same-sex marriage, but the Court found a way to sidestep the conflict of rights set up by the case, ending its opinion by stating that “[t]he outcome of cases like this . . . must await further elaboration in the courts.”⁴Id. at 640. The only guidance the Court offered to courts trying to reach a reconciliatory outcome in future cases, however, was the general platitude that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”⁵Id.

When the Court finally did confront these disputes head on, a mere five years later, it definitively came down on the side of religious rights. The Court held that a state’s anti-discrimination statute could not be enforced against a website designer who refused to create wedding websites for same-sex couples because the statute “s[ought] to force [the designer] to ‘utter what is not in [her] mind’ about a question of political and religious significance.”⁶303 Creative LLC v. Elenis, 600 U.S. 570, 596 (2023). While the dissenters would have sided with LGBTQ+ rights, they, like the majority, saw the plaintiff’s religious rights as in tension with the state’s goal of protecting LGBTQ+ people from discrimination, stating that “[t]ime and again, businesses and other commercial entities have claimed constitutional rights to discriminate.”⁷Id. at 623 (Sotomayor, J., dissenting). The dissent analogized this case to historical instances in the 1960s where religious liberty was wielded to justify racial discrimination and segregation.⁸Id. at 619–21 (discussing the religious objections that were raised to the Civil Rights Act of 1964 and to integration efforts more broadly, such as in cases like Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968)).

Yet, this diametric conception of the relationship between religious rights and LGBTQ+ rights obscures the fact that religion is not inherently or uniformly anti-LGBTQ+. As one scholar has explained:

[T]here has never existed any uniform condemnation of same-sex sexuality or transgenderism [sic] in any of the major religious traditions. Instead, there is a number of highly variegated stands that are difficult to conform with such contemporary categories as homosexuality, bisexuality, and LGBT identity . . . . The more pronounced and general condemnation of transgenderism [sic] and same-sex sexuality found in so many religious communities today is, indeed, a more recent phenomenon . . . .⁹Dag Øistein Endsjø, The Other Way Around? How Freedom of Religion May Protect LGBT Rights, 24 Int’l J. Hum. Rts. 1681, 1684 (2020).

This Article seeks to dismantle the religious rights versus LGBTQ+ rights dichotomy that has become engrained in American legal thought and explore whether and how religious rights can actually be used to support and protect LGBTQ+ people. To do this, Part I examines how courts, including the U.S. Supreme Court, have recently expanded free religious exercise doctrines in cases with anti-LGBTQ+ religious plaintiffs. Part II then discusses LGBTQ+-affirming religious faiths and beliefs. Finally, Part III explores the prospect of integrating LGBTQ+-affirming religious beliefs into newly expanded free religious exercise doctrines in order to protect the rights of LGBTQ+ people.

I. Expanding Religious Rights at the Expense of LGBTQ+ Rights

In the last couple years, some courts have used cases centered on religious objections to LGBTQ+ rights as vehicles for pushing the boundaries of constitutional doctrines that protect individuals’ freedom of religious practice. These courts have done so in broad, generally applicable language not confined to the facts of these cases, ironically opening the door for these new, expansive doctrines to be applied to any number of free religious exercise claims, including, potentially, pro-LGBTQ+ religious exercise claims.

Most prominently, the U.S. Supreme Court’s June 2025 decision in Mahmoud v. Taylor required a school district in Maryland to allow parents with anti-LGBTQ+ religious beliefs to opt their children out of lessons that simply used books featuring LGBTQ+ characters.¹⁰Mahmoud v. Taylor, 606 U.S. 522 (2025). The case involved the school district’s introduction of “13 ‘LGBTQ+-inclusive’ texts for use in the English and Language Arts curriculum from pre-K through 12th grade,” and specifically, the five books designated for students in kindergarten through fifth grade.¹¹Id. at 533. Guidance from the district school board on the integration of these books into the curriculum recommended “that teachers incorporate the new texts into the curriculum in the same way that other books are used,” which ranged from merely “put[ting] them on a shelf for students to find on their own” to “us[ing] them as a read aloud” during English lessons.¹²Id. at 535 (emphasis added) (internal quotation marks omitted). In other words, the was no special emphasis placed on these books compared to other books, nor were they being used for the purpose of discussing LGBTQ+ identities.¹³See id. at 597 (Sotomayor, J., dissenting) (“The Board directed the schools to use the new books in the same manner as all other books in the English language program, namely, to ‘assist students with mastering reading concepts like answering questions about characters, retelling key events about characters in a story, and drawing inferences about story characters based on their actions.’ The Board made clear to individual schools that ‘there is no planned explicit instruction on gender identity and sexual orientation in elementary school,’ using the Storybooks or otherwise.” (citation omitted)).

Despite that fact, the majority held that “the parents are likely to succeed on their claim that the Board’s policies [i.e., not allowing parental opt-outs for lessons involving the books] unconstitutionally burden their religious exercise,” finding that the use of the books without an opt-out “substantially interferes with the religious development of their children” and “carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent.”¹⁴Id. at 546 (majority opinion) (cleaned up). According to the majority, this “objective danger” was that, “[l]ike many books targeted at young children, the books are unmistakably normative. They are clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected.”¹⁵Id. at 550 (citation omitted). However, as the dissent observes, this is an exaggeration of the facts because, while “[t]he five Storybooks introduce readers to LGBTQ characters, . . . they draw on many of the themes common to children’s books[,] . . . [such as] overcoming differences, fairytale romances, and celebrating big milestones like weddings.”¹⁶Id. at 597 (Sotomayor, J., dissenting); see also id. at 596 (“Because the majority selectively excerpts the book in order to rewrite its story, readers are encouraged to go directly to the source, reproduced below.”).

To reach its decision, the majority relied heavily on the 1972 case Wisconsin v. Yoder.¹⁷406 U.S. 205 (1972). Yoder involved Amish parents’ challenge to a Wisconsin law mandating children’s school attendance up to age sixteen, alleging that “their children’s attendance at high school, public or private, was contrary to the Amish religion and way of life.”¹⁸Id. at 209. In holding that Wisconsin’s law violated the Amish parents’ right to free religious exercise, the Court said that “compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practice as they exist today.”¹⁹Id. at 218. This is the language that the majority in Mahmoud latched onto, claiming that “[t]hese books carry with them ‘a very real threat of undermining’ the religious beliefs that the parents wish to instill in their children” and thus Yoder directly controlled the outcome in the case.²⁰Mahmoud, 606 U.S. at 553 (quoting Yoder, 406 U.S. at 218). However, even a cursory review of Yoder reveals that the Mahmoud majority is stretching its meaning to its limits, if not completely contradicting it.

To start, in Yoder, the threat the Court identified was that the Wisconsin law “affirmatively compel[led] [the Amish], under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs,” namely being forced to send their children to high school when their religious practice forbade that.²¹Yoder, 406 U.S. at 218 (emphasis added); see also id. (“The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable.”). Thus, the problem with Wisconsin’s law was that it forced the parents into a lose-lose-lose scenario where any action they took imposed significant costs on them—send your kids to school and violate important tenets of your religion, follow your religious convictions and risk prosecution for taking your kids out of school, or uproot your family to move to a state that doesn’t have a compulsory-attendance law.²²See id. (“[The Amish] must either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region.” (emphasis added)). Indeed, the Court emphasized that enforcement of the law against the parents “would gravely endanger if not destroy the free exercise of respondents’ religious beliefs.”²³Id. at 219 (emphasis added). In contrast, the Mahmoud majority says that the threat is to “the religious beliefs that the parents wish to instill in their children.”²⁴Mahmoud, 606 U.S. at 553 (emphasis added). Especially when the books are being used incidentally to other lessons, not to facilitate a substantive discussion of LGBTQ+ identities, and when the parents are still free to teach their kids whatever religious lessons they want outside of school, that seems a far cry from the parents being forced into an impossible choice between their religion and the law, as was the case in Yoder.

Beyond that selective (mis)quoting of Yoder, the Mahmoud majority’s reading of Yoder seems to directly contradict an explicit disclaimer from the Yoder Court:

Our disposition of this case, however, in no way alters our recognition of the obvious fact that courts are not school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discrete aspects of a State’s program of compulsory education. This should suggest that courts must move with great circumspection in performing the sensitive and delicate task of weighing a State’s legitimate social concern when faced with religious claims for exemption from generally applicable education requirements.²⁵Yoder, 406 U.S. at 234–35 (emphasis added).

Which books a school district’s teachers must use to teach the district’s English curriculum would seem a quintessential example of a “generally applicable education requirement[],” from which requests for religious exemption should be treated with “great circumspection.” Indeed, the Yoder Court declared that the showing the Amish parents made that entitled them to an exemption from Wisconsin’s law was steep and “one that probably few other religious groups or sects could make.”²⁶Id. at 236. Specifically, the Court found that the Amish had “carried the . . . difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances in support of its program of compulsory high school education.”²⁷Id. at 235. In other words, the Amish won not only because the Wisconsin law severely impaired their religious practice, but also because they had developed an alternate means of continuing to educate their children post-eighth grade that furthered the same interests the state was seeking to further with its compulsory attendance law. In contrast, the Mahmoud plaintiff’s alternative of allowing opt-outs actively undermines the interests the school district sought to further by including the LGBTQ+ storybooks in its curriculum.²⁸Mahmoud, 606 U.S. at 628–29 (Sotomayor, J., dissenting) (“[T]he point of the Board’s program is to ensure that diverse groups of students are represented in reading materials across the curriculum. The Board cannot accomplish that purpose simply by consolidating all books involving LGBTQ characters into a single inclusivity hour and allowing opt outs, as the majority appears to believe. That approach would emphasize difference rather than sameness and foster exclusion rather than inclusion. The point of inclusivity is to use books representing a diversity of identities and viewpoints the same way one might use any other book, communicating that one’s LGBTQ classmates should be treated in the same manner as anyone else.” (citation omitted)).

Moreover, as the Mahmoud dissent notes, the Supreme Court itself had already rejected the majority’s reading of Yoder in a later case that said:

[T]here is nothing whatsoever in the Yoder opinion to support the proposition that the ‘impact’ on the Amish religion would have been constitutionally problematic if the statute at issue had not been coercive in nature. . . . Whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.²⁹Mahmoud, 606 U.S. at 608 (Sotomayor, J., dissenting) (emphasis added) (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 457, 451 (1988)).

Yet, that is the essence of the Mahmoud plaintiffs’ claim—that the district’s use of these books affected their children’s “spiritual development.”³⁰The Mahmoud majority even says as much when they say that the district’s use of the books “substantially interferes with the religious development of children.” Id. at 549 (majority opinion) (cleaned up). Thus, Mahmoud dramatically expanded the freedom of religious exercise principles announced in Yoder, making it such that merely “[e]xposing students to the ‘message’ that LGBTQ people exist, and that their loved ones may celebrate their marriages and life events, . . . is enough to [violate parents’ religious rights and] trigger the most demanding form of judicial scrutiny.”³¹Id. at 593 (Sotomayor, J., dissenting).

The U.S. Supreme Court is not the only court taking such dramatic doctrinal leaps. In December 2023, the Virginia Supreme Court ruled in Vlaming v. West Point School Board that a teacher’s firing for refusing to use a trans student’s preferred pronouns violated the teacher’s religious rights under the Virginia Constitution.³²Vlaming v. W. Point Sch. Bd., 895 S.E.2d 705 (Va. 2023). In so ruling, the majority announced that “the constitutional right to free exercise of religion is among the ‘natural and unalienable rights of mankind,’” such that the government can only restrict religious liberty once it crosses the line into “overt acts against peace and good order.”³³Id. at 721 (citations omitted). The court rooted this rule in the U.S. Supreme Court’s opinion in Sherbert v. Verner, which said, “[T]he Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles . . . . The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order.”³⁴Sherbert v. Verner, 374 U.S. 398, 403 (1963). The Vlaming majority termed this the “peace-and-good-order limiting principle”³⁵Vlaming, 895 S.E.2d at 723. and then combined that principle with an historical analysis of the Virginia Constitution’s religious freedom clause to arrive at its new test.

However, that test ignores what Sherbert says about the possibility of regulating religious practices that substantially threaten “public safety.” Indeed, a partial concurrence in Vlaming noted how leaving “public safety” out of the test raises the bar that any regulation of religious practice must clear:

[O]f the four cases cited [in Sherbert to support the quoted statement], one dealt with a threat to public safety occasioned by a failure to observe a vaccination mandate, two dealt with a ban against polygamy, treated as a general offense against society, and the fourth dealt with child labor laws. To the extent that any of these are easily classified, they sound more like regulations regarding public safety or general order rather than specific “overt acts against peace and good order.”³⁶Id. at 751 (Powell, J., concurring in part) (emphasis added) (citations omitted).

Furthermore, this partial concurrence cast doubt on the majority’s historical analysis, noting that the “peace and good order” language does not exist in the Virginia Constitution, but rather comes from a state statute enacted in 1786.³⁷Id. at 749. Yet, despite “a portion of this statute [being] incorporated verbatim” into the original Virginia Constitution, the “peace and good order” language was not.³⁸Id. Additionally, “[t]he Virginia Constitution has been revised, amended, and reenacted numerous times since then, and in each instance, the delegates could have incorporated the peace and good order language into the Constitution. They did not.”³⁹Id. Thus, this partial concurrence accuses the majority of “judicial[ly] transform[ing] . . . a long-standing statutory provision into a constitutional standard” when there is “no precedent which provides a rationale” for doing so.⁴⁰Id.

Like the U.S. Supreme Court in Mahmoud, the Virginia Supreme Court in Vlaming overreads the sources it cites to justify its new standard for assessing freedom of religious exercise claims. And also like in Mahmoud, the new standard is not confined to the specific facts of the case but rather is a generally formulated test that could be expanded far beyond the anti-LGBTQ+ rights context in which it arose.⁴¹See Mahmoud v. Taylor, 606 U.S. 522, 627 (2025) (Sotomayor, J., dissenting) (“What the majority elides, however, is that its ruling is not limited to a set of five storybooks. . . . The logic of the Court’s ruling will also apply to countless other topics, interactions, and activities that may conflict with a parent’s religious preferences.”); Vlaming, 895 S.E.2d at 752 (Mann, J., concurring in part and dissenting in part) (“Regarding Vlaming’s free-exercise claim, the majority establishes a sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either.”). Thus, there is no reason why these standards could not be applied to free religious exercise claims made in support of LGBTQ+ rights.

II. LGBTQ+-Affirming Religious Beliefs

While religious beliefs have predominantly been associated with the anti-LGBTQ+ movement, religion is not monolithically anti-LGBTQ+.⁴²See, e.g., Sarah Moore, 150+ Anti-LGBTQ Incidents Targeted Religious Communities in the US, According to Newly Released Data from GLAAD’s ALERT Desk, GLAAD (Apr. 15, 2025), https://glaad.org/anti-lgbtq-incidents-target-religious-communities/ [https://perma.cc/PWP7-K7UX]  (quoting Presiding Bishop Elizabeth Eaton of the Evangelical Lutheran Church in America saying, “Bullying and discrimination have no place in the body of Christ, but, sadly, reminders are still needed. Jesus’ command that we love one another does not come with a caveat about who we are to love.”). In fact, many religious sects and faiths have beliefs that are supportive of LGBTQ+ people. Historically, “there has never been any universal religious agreement on either same-sex sexuality or transgenderism [sic].” ⁴³Endsjø, supra note 9, at 1683. Essentially all major religious traditions have multifaceted views on various aspects of sexual and gender identities. For example, “[t]he Hebrew Bible forbids men and women to wear clothes of the opposite sex and condemns anal intercourse between men, but says nothing about either sex between women or other sexual acts between men, even presenting the ‘wonderful’ love between David and Jonathan as exemplary, ‘surpassing the love of women’.”⁴⁴Id. at 1684 (footnotes omitted). And in the Christian New Testament, “Jesus . . . is completely silent on th[e] issue” of same-sex relations, and he also “spoke acceptingly of ‘eunuchs who were born that way, . . . eunuchs who have been made eunuchs by others’, as well as of ‘those who choose to live like eunuchs for the sake of the kingdom of heaven’.”⁴⁵Id. (emphasis added) (footnotes omitted). While a eunuch is by no means the same as an intersex or trans person, these statements reflect a certain level of respect for people’s privacy and bodily autonomy when it comes to their sexual anatomy. Moreover, even though many religious faiths made a sharp turn towards more all-encompassing anti-LGBTQ+ beliefs in reaction to their deeming “modern understanding[s] of particular LGBT identities” a threat to traditional heterosexual families, there is now a growing trend towards acceptance, with “several of the largest denominations within both Christianity and Judaism hav[ing] embraced modern LGBT identities and now consider[ing] complete LGBT equality consistent with their faith.”⁴⁶Id.; see also Sister Jeannine Gramick, From Conflict to Coexistence: The Catholic Response to the LGBT Community, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground 119, 129 (William N. Eskridge, Jr. & Robin Fretwell Wilson eds., 2019) (“Pope Francis has called for a new way of treating LGBT people and others on the periphery of the institutional Church—specifically, ending the obsession with issues such as abortion, same-sex marriage, and contraception. Pope Francis said that the Church sometimes seems locked up ‘in small-minded rules’ and forgets the most important message, proclaiming that Jesus Christ has saved humanity.”).

These nuances complicate the narrative that religious beliefs, especially those of predominant religions in the United States like Christianity, are inherently anti-LGBTQ+. There are also some religions that are more affirmatively supportive of certain queer identities, especially transgender and gender non-conforming identities. Indeed, in the United States, many Native American tribes recognize the Two Spirit identity. The term Two Spirit was coined in 1990 as an umbrella term for a large array of gender identities and expressions that exist within multiple Native American tribes, but it generally denotes individuals who “have both a male and female spirit within them and are blessed by their Creator to see life through the eyes of both genders.”⁴⁷Tony Enos, 8 Things You Should Know About Two Spirit People, ICT News (Mar. 28, 2017), https://ictnews.org/archive/8-misconceptions-things-know-two-spirit-people/ [https://perma.cc/2F37-RRS5]. While each tribe has their own conception of Two Spirit identity, “Two-Spirit identity was widely believed to be the result of supernatural intervention . . . and sanctioned by tribal mythology.”⁴⁸Two-Spirit, Indian Health Serv., https://www.ihs.gov/lgbt/twospirit/ [https://perma.cc/N44U-T2RP]. In some Native American tribes, the Two Spirit identity is deeply rooted in their religious traditions, with “Two-Spirit people [believed to have] emerged at the time of creation.”⁴⁹Abel R. Gomez, Two-Spirit Indigenous Peoples Building on Legacies of Gender Variance, The Revealer (Oct. 6, 2022), https://therevealer.org/two-spirit-indigenous-peoples-building-on-legacies-of-gender-variance/ [https://perma.cc/HF8E-A8AP]. For example, in a Wabanaki creation story, a tree spirit was split in half, and these “two parts [were] transformed into . . . the first Wabanaki woman and man.”⁵⁰Id. After their transformation, “there was just a little bit of each essence left over,” which were “recombined” and became “the first Two-Spirit.”⁵¹Id. (quoting an account of this creation story told by “Two-Spirit and non-binary cultural leader Geo Neptune (Passamaquoddy)”). Those with Two Spirit “identities took on esteemed positions as ceremonial leaders, warriors, storytellers, and healers.”⁵²Id.; see also id. (“Two-Spirit activist L. Frank Manriquez (Tongva, Rarámuri, Acjachemen) says that in Native California, ‘We permeated the sacred and the profane parts of life…Historically, we Two-Spirit have always been those who can do what others cannot do but need to be done.’”). Importantly, conceptions of Two Spirt identity “illuminate pre-colonial understandings of gender,” which were much more flexible than the rigid binary of Western colonizers and thus also exist outside the modern conceptions of LGBTQ+ identities that are rooted in that binary.⁵³Id.; see also id. (quoting Mohawk performance artist Aiyyana Maracle saying, “Though I may fit the definition of the European concept of transsexuality, as far as I am concerned, my being and transformation are based in the historical continuum of North America’s Indigenous people.”). And for many of those Native Americans who identify as Two Spirit today, “[c]laiming the role of Two Spirit is to take up the spiritual responsibility that the role traditionally had.”⁵⁴Enos, supra note 47.

Beyond Native American religious traditions, there are many other “cultures [that] have recognized gender identities other than male and female” and in which people with these identities “have often occupied unique positions . . . , serving as priests, artists, and ceremonial leaders.”⁵⁵The Editors of Encyclopaedia Britannica, 6 Cultures That Recognize More than Two Genders, Britannica, https://www.britannica.com/list/6-cultures-that-recognize-more-than-two-genders [https://perma.cc/TPG8-S7WG] (last visited Oct. 20, 2025). For example, there is a “rich and varied heritage of transsexual individuals in the form of divinity and heroes from Hindu mythology.”⁵⁶Shiva Prakash Srinivasan & Sruti Chandrasekaran, Transsexualism in Hindu Mythology, 24 Indian J. Endocrinology & Metabolism 235, 236 (2020). In Indian culture, this gender diversity is reflected in the hijra identity, a transfeminine identity believed to have “supernatural powers [] enshrined in Hindu mythology, and their gender fluidity mirrors the androgynous gods.”⁵⁷Ina Goel, India’s Third Gender Rises Again, Sapiens (Sep. 26, 2019), https://www.sapiens.org/biology/hijra-india-third-gender/ [https://perma.cc/7AF8-BV9A]. References to hijras can be “found in Hindu religious texts[,] and . . . [a] unique culture underlies the hijra identity: hijras often leave home to join groups that educate new initiates in spirituality . . . [and] assume a religious role in Hindu culture, celebrating rituals like weddings and births.”⁵⁸The Editors of Encyclopaedia Britannica, supra note 55. While “Hindu mythology deifies them, [] British colonists demonized them. So today, they are revered by many as demigoddesses and reviled by others as deviant victims of bad karma.”⁵⁹Goel, supra note 57. However, they have started to regain their position in Indian society, as “[i]n 2014, India’s Supreme Court officially recognized the third gender. The decision means the government must provide equal opportunities and legal and constitutional protection to trans people.”⁶⁰Id.

Especially as many of the current attacks on LGBTQ+ people are focused on trans individuals,⁶¹See Tracking the Rise of Anti-Trans Bills in the U.S., Trans Legis. Tracker, https://translegislation.com/learn [https://perma.cc/XU2Z-WXW6] (last visited Oct. 18, 2025). these religious traditions that revere identities outside a rigid gender binary could allow LGBTQ+-rights advocates to protect LGBTQ+ people from within the very logic of the right to free exercise of religion that, up until now, has almost exclusively been used to further the anti-LGBTQ+ movement.

III. LGBTQ+ Rights as Religious Rights

Even though there are numerous ways in which religious beliefs support the rights of LGBTQ+ people, almost all of the religious beliefs that have appeared in court cases involving LGBTQ+ rights in the United States have been anti-LGBTQ+. In a survey of “US federal [appellate] cases from 1990 to 2020 that implicate the issue of religious freedom and LGBT rights,” only twelve of the sixty-two cases studied involved “a religion-based claim to affirm or defend LGBT people or rights.”⁶²Emily Kazyak et al., Making the Case: Examining Outcomes of Religious‑Based Claims in Federal Litigation Involving LGBT Rights, 20 Sexuality Rsch. & Soc. Pol’y 1393, 1393, 1398 (2023). In only one of those cases, though, was the “religion-based claim” the type of constitutional Free Exercise Clause claim imagined by this Article.⁶³This Article’s discussion of the pro-LGBTQ+ cases included in the survey’s results is limited to the six such cases named and discussed in the published study, cited supra note 62. That published study is largely a summary of empirical results and does not include a full list of the cases that make up those results, nor does it mention or describe all of the cases. The full database of cases will not be “made publicly available [until] five years after the completion of the project,” per the terms of the grant that funded the study. Id. at 1404. That case, Shahar v. Bowers, involved a claim of employment discrimination on the basis of sexual orientation.⁶⁴Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997). The survey identified three other cases involving claims of employment discrimination on the basis of sexual orientation that also involved pro-LGBTQ+ religious beliefs but that did not involve a Free Exercise Clause claim: an Establishment Clause claim and a statutory sexual orientation discrimination claim under state and federal civil rights statutes against a religious organization that received state funds, Pedreira v. Ky. Baptist Homes for Child., Inc., 579 F.3d 722 (6th Cir. 2009) (lesbian social worker fired from state-funded anti-LGBTQ+ religious organization that helped neglected or abused children); a statutory religious discrimination claim under Title VII, Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618 (6th Cir. 2000) (lesbian woman who was an ordained minister in a pro-LGBTQ+ Christian church fired by her employer, an anti-LGBTQ+ Baptist organization); and a Title VII sexual harassment suit against a religious employer, Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648 (10th Cir. 2002) (lesbian employee subjected to anti-LGBTQ+ statements by coworkers and eventually fired by church at which she was a youth minister).Kazyak et al., supra note 62, at 1398–99. Georgia’s Attorney General had revoked an employment offer after learning that the female offeree had married another woman in a Jewish ceremony (before same-sex marriage was legal). Even then, the court decided against the plaintiff on the basis of the constitutional right to intimate or expressive association, relegating the plaintiff’s Free Exercise Clause claim to a footnote.⁶⁵Shahar, 114 F.3d at 1111 n.27 (“That the Attorney General did not revoke Shahar’s offer because of her religious affiliation or her religious beliefs (as opposed to her conduct) is plain from the record. Assuming arguendo that the Attorney General’s decision to revoke Shahar’s offer did implicate her Free Exercise rights, we believe that Pickering balancing applies, and that the Attorney General prevails in that balance for the reasons discussed above. In addition, several of us also doubt that a facially neutral executive act which adversely impacts on the exercise of one’s religion either constitutes a violation of the Free Exercise Clause or requires heightened scrutiny.” (citation omitted)). A concurrence did address that Free Exercise Clause claim in more detail, noting that, “[w]hile the record does establish that [the plaintiff] was engaged in the exercise of her religion, there is no evidence that the religious nature of the ceremony motivated” the revocation of her employment offer.⁶⁶Id. at 1118 (Tjoflat, J., specially concurring).

While no other cases named in the study involved similar pro-LGBTQ+ free religious exercise claims, it is worth mentioning that two cases involved Establishment Clause claims rooted pro-LGBTQ+ religious beliefs. One involved a challenge by an agnostic couple and a lesbian couple to a city lease of public park land to the Boy Scouts of America, although it is unclear if the agnostic plaintiffs were actively asserting pro-LGBTQ+ religious beliefs or if they were merely objecting to the Boy Scouts’ policy against agnosticism.⁶⁷Barnes-Wallace v. City of San Diego, 704 F.3d 1067 (9th Cir. 2012). The other involved a challenge by a pro-LGBTQ+ church, among other plaintiffs, to a Mississippi law that prohibited the government from discriminating against anyone who held anti-LGBTQ+ religious beliefs.⁶⁸Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017). In sum, this extensive survey unearthed only a handful of cases that involved pro-LGBTQ+ “religion-based claims,”  and even those claims did not necessarily rely explicitly on pro-LGBTQ+ religious beliefs, let alone constitute a pro-LGBTQ+ constitutional freedom of religious exercise claim.

Even internationally, there is very little legal precedent that can demonstrate what a pro-LGBTQ+ religious exercise claim looks like. As scholar Dag Øistein Endsjø writes, international tribunals like the European Court of Human Rights “seem to have perceived this dispute essentially as a dichotomy of religious and other rights,” just like how the dispute is perceived in America.⁶⁹Endsjø, supra note 9, at 1682. Endsjø discusses only one international case that addresses a pro-LGBTQ+ free religious exercise claim: Ferguson v. The Attorney General from the Supreme Court of Bermuda (Bermuda’s main trial court).⁷⁰Id. at 1695. Ferguson involved an attempt by the Bermuda legislature to repeal a prior decision of the Bermuda Supreme Court—which had found Bermuda’s Human Rights Act protected a right to same-sex marriage—by enacting a statute that prohibited same-sex marriage and instead created a same-sex domestic partnership.⁷¹Ferguson v. Att’y Gen., [2018] SC (Bda) 45 Civ. This law was challenged as unconstitutional under the Bermuda Constitution because it interfered with “the ability to practise the religious and nonreligious beliefs of (a) LGBT persons who believed in marriage, and (b) churches who wished to officiate at same-sex marriages.”⁷²Id. ¶ 20. This claim is essentially equivalent to a Free Exercise Clause claim under the First Amendment of the U.S. Constitution,⁷³Id. ¶ 72 (describing the rights protected by the relevant portion of the Bermuda Constitution as the “freedom to hold religious and non-religious beliefs,” the “freedom to change such beliefs,” and the “freedom to manifest and propagate such beliefs in ‘worship, teaching or practice’” (emphasis in original)). and the Bermuda Supreme Court ruled in favor of the plaintiffs’ ability to exercise their pro-LGBTQ+ religious beliefs:

The Applicants do not seek the right to compel persons of opposing beliefs to celebrate or enter into same-sex-marriages. They merely seek to enforce the rights of those who share their beliefs to freely manifest them in practice. Persons who passionately believe that same-sex marriages should not take place for religious or cultural reasons are entitled to have those beliefs respected and protected by law. But, in return for the law protecting their own beliefs, they cannot require the law to deprive persons who believe in same-sex marriage of respect and legal protection for their opposing beliefs.⁷⁴Id. ¶ 90.

While obviously not binding on U.S. courts—and based on different constitutional text⁷⁵The relevant portion of the Bermuda Constitution reads: “Except with his consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief and freedom, either alone or in community with others, and both in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.” Bermuda Constitution Order 1968, Feb. 21, 1968, sched. 2, ch. 1, § 8(1) (Berm.). with a different legal interpretation⁷⁶See Ferguson, SC (Bda) 45 Civ, ¶ 73–74 (quoting Royal Bahamas Defence Force and others-v-Laramore [2017] UKPC 13) (“‘The conferral or guarantee of freedom of conscience or religion constitutes a promise that such freedom will be protected, and not interfered with by, the state. . . . Freedom of conscience is in its essence a personal matter. It may take the form of belief in a particular religion or sect, or it may take the form of agnosticism or atheism. It is by reference to a person’s particular subjective beliefs that it must be judged whether there has been a hindrance.’”).—this case, and the broad language it uses in discussing the pro-LGBTQ+ religious beliefs at issue, does offer some hope that similar claims could find success in U.S. courts.

There may also be some hope closer to home. For example, in the employment discrimination case against the Georgia Attorney General discussed above, a concurrence would have found that the lesbian plaintiff’s “wedding ceremony was an exercise of her religion: she participated in a ‘wedding’ ceremony that was in accord with her sincere religious beliefs.”⁷⁷Shahar v. Bowers, 114 F.3d 1097, 1118 (11th Cir. 1997) (Tjoflat, J., specially concurring). Once that finding is made, the logic of Ferguson becomes highly relevant, as it would counsel that the law must respect and protect that sincere religious belief by allowing the plaintiff to get married or, in this specific case, not be fired because of her marriage.

In assessing the prospect of similar claims finding future success in U.S. courts, though, it should be noted that these two opinions took different approaches to assessing the sincerity of the plaintiffs’ religious beliefs. In Ferguson, the Bermuda Supreme Court found that “[i]t is self-evident that the beliefs (as regards same-sex marriage) [are genuine and thus] qualify for protection” under the Bermuda Constitution.⁷⁸Ferguson, SC (Bda) 45 Civ, ¶ 80. The Bermuda Supreme Court does go beyond mere self-evidence to justify finding the plaintiff’s religious beliefs are genuine, but that justification is still not as detailed as the Shahar concurrence’s review of the factual record. Instead, the Bermuda Supreme Court rests its finding mainly on the general proposition that “[t]he battle over ownership of the very idea of marriage in Bermuda and elsewhere is irresistible proof of the fact that a belief in marriage matters.” Id. By contrast, the concurrence in Shahar dove more deeply into the factual record to find specific support for its conclusion that the plaintiff’s religious belief in same-sex marriage was sincere.⁷⁹Shahar, 114 F.3d at 1118 (Tjoflat, J., specially concurring)(“The record establishes that homosexual ‘marriages’ are recognized by a part of the Reconstructionist movement of the Jewish faith. In addition, the record shows that Shahar [the plaintiff] and her partner are life-long Jews and that they have been active in a Jewish congregation which ministers to homosexuals and recognizes homosexual ‘marriages.’ Shahar’s wedding ceremony was performed by a rabbi and was otherwise quite similar to a traditional Jewish wedding between a man and a woman.”). This more searching review of the record would present a higher hurdle to clear than the plaintiffs in Bermuda faced, especially because, as is discussed more below, U.S. courts tend to be skeptical of minority religious beliefs, which many pro-LGBTQ+ religious beliefs are. Yet, even as U.S. courts engage in a more a factually intrusive inquiry, they still tend to be deferential to plaintiffs’ asserted religious beliefs.⁸⁰Cf. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 725 (2014) (in the context of the Religious Freedom Restoration Act, explaining that “it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our ‘narrow function … in this context is to determine’ whether the line drawn reflects ‘an honest conviction’”).

Another important thing the Ferguson case does is demonstrate the value of using pro-LGBTQ+ religious beliefs to counter the success of the anti-LGBTQ+ movement. Specifically, “awareness of how freedom of religion also protects LGBT-people and religious pro-LGBT-beliefs dispels the myth that being either LGBT or pro-LGBT is essentially about being against religion. . . . This is an intra-religious conflict where no party may claim an exclusive right to represent religion in the debate.”⁸¹Endsjø, supra note 9, at 1686. This observation shifts the debate from one between religious rights principles and non-discrimination or equal protection principles to one between conflicting religious rights. The main benefit of this shift is that it undermines the anti-LGBTQ+ movement’s religious justifications, as “[t]hey will no longer be able to argue that they are simply protecting freedom of religion, as their religious anti-LGBT demands based on their own freedom of religion simultaneously represent a most fundamental assault on the freedom of religion of LGBT people and all those with religious pro-LGBT beliefs.”⁸²Id. In other words, one simple ideological move reveals how “religious anti-LGBT beliefs are just as much the fierce opponents of freedom of religion as its advocates. When considering the proper balance, one finds that people with anti-LGBT beliefs thus lose the very claim to monopoly of victimhood in the matter of freedom of religion.”⁸³Id. at 1687.

An important corollary of this reframing comes from the fact that freedom of religion is not solely about affirmative religious beliefs and actions. Rather, it also incorporates “the so-called negative freedom of religion or freedom from religion, which protects everyone against having to live according to other people’s beliefs, regardless whether one has or does not have a religious conviction of one’s own.”⁸⁴Id. at 1685 (emphasis in original); see also Civil Rights Civics Institute, Religious Freedom, Am. Bar Ass’n, https://www.americanbar.org/groups/crsj/about/initiatives/civil-rights-civics-institute/religious-freedom/ [https://perma.cc/GA57-JNQX] (last visited Oct. 18, 2025) (“Under the U.S. Constitution, religious freedom is the right for everyone to practice his or her religion, or to choose not to practice a religion at all. By giving everyone the right to practice or not to practice a religion, the Constitution preserves this liberty and requires that all religions, and the beliefs of those who do not subscribe to a religion, be respected.”); Sign the Christians Against Christian Nationalism Statement, Christians Against Christian Nationalism, https://www.christiansagainstchristiannationalism.org/statement [https://perma.cc/X2S5-G8RL] (last visited Oct. 18, 2025) (“One’s religious affiliation, or lack thereof, should be irrelevant to one’s standing in the civic community.”). Thus, even without resort to affirmatively pro-LGBTQ+ religious beliefs, thinking of the struggle for LGBTQ+ rights as “a question of freedom of religion versus freedom of religion” can help push back against anti-LGBTQ+ religious zealotry by reminding us that  “LGBT people ha[ve] the same right as anyone else not be coerced to live their lives according to other people’s religious beliefs.”⁸⁵Endsjø, supra note 9, at 1686.

At this point, it might be useful to pause and offer a couple concrete examples of what a pro-LGBTQ+ religious rights claim might look like in the U.S. For one, with many states passing laws that enshrine a rigid gender binary in their statutory codes,⁸⁶See, e.g., Mapping Attacks on LGBTQ Rights in U.S. State Legislatures in 2025, ACLU (Sep. 19, 2025), https://www.aclu.org/legislative-attacks-on-lgbtq-rights-2025?impact=rights__sex [https://perma.cc/73A6-MN23] (showing that, in 2025 alone, there were 38 bills introduced in state legislature that sought to re-define sex, 5 of which passed into law); Joshua Arrayales & Elana Redfield, Williams Inst. at UCLA Sch. of L., The Impact of 2025 State Anti-Transgender Legislation on Youth 20 (2026), https://williamsinstitute.law.ucla.edu/publications/anti-trans-legislation-youth/ [https://perma.cc/MJ5X-HM49] (reporting that, in recent years, 15 states have enacted laws defining “sex” as sex assigned at birth). one possible challenge to such a law could be made by a Two Spirit-identifying Native American on the basis that the law interferes with their ability to fulfill the religious and spiritual duties assigned to them by virtue of their Two Spirit identity.⁸⁷Cf. Edwards v. State, No. DV-23-1026, slip op. at 30 (Mont. Dist. Ct. Feb. 18, 2025) (holding unconstitutional a Montana law rigidly defining “male” and “female” in part because the law discriminated on the basis of culture, in violation of the Montana Constitution’s equal protection guarantees, since “Two Spirit individuals possess gender identities which do not align with [the law’s definitions], as ‘many Indigenous cultures reject the gender binary.’”). Additionally, as calls for the overturning of Obergefell v. Hodges grow,⁸⁸See Steven Romo, A Decade After the U.S. Legalized Gay Marriage, Jim Obergefell Says the Fight Isn’t Over, NBC News (June 26, 2025, 5:00 AM), https://www.nbcnews.com/nbc-out/out-politics-and-policy/us-gay-marriage-legal-10-year-anniversary-obergefell-supreme-court-rcna211276 [https://perma.cc/T3VK-CRKL] (“Over the past several months, Republican lawmakers in at least 10 states have introduced measures aimed at undermining same-sex marriage rights. These measures, many of which were crafted with the help of the anti-marriage equality group MassResistance, seek to ask the Supreme Court to overturn Obergefell.”). one possibility for saving the right to same-sex marriage lies in following the lead of the Bermuda Supreme Court and shifting the constitutional foundation of that right from the Fourteenth Amendment’s due process guarantee of liberty to the First Amendment’s guarantee of religious freedom, premised on “the rights of those who believe (on religious or non-religious grounds) in same-sex marriage . . . to manifest their beliefs by participating in legally recognised same-sex marriages (as parties to a marriage or as religious officiants).”⁸⁹Ferguson v. Att’y Gen., [2018] SC (Bda) 45 Civ., ¶ 112.

One potential complication to this strategy for advancing LGBTQ+ rights is that, as found in the thirty-year survey of cases that involved both religious and LGBTQ+ rights, “the law upholds Christian hegemony and privileges conservative Christian viewpoints.”⁹⁰Kazyak et al., supra note 62, at 1404; see also E Kathryn Tubb, Comment, Sincerity, Subjectivity & Religion: The Evolution of RFRA from a Constitutional Shield to a Political Sword, 75 Okla. L. Rev. 319, 344 (2023) (“[M]inority belief systems ‘bear the brunt of the [religious] definition and the sincerity inquiries,’ as a court is ‘more likely to find that a religious belief is insincere when the belief in question is, by cultural norms, incredulous.’ Consequently, religious claims involving beliefs that ‘closely parallel or directly relate to the culture’s predominate religious traditions’ are most likely to be recognized by judges.” (footnotes omitted) (quoting William P. Marshall, Correspondence on Free Exercise Revisionism: In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 311 (1991))). The survey found that, while courts are generally “not likely to rule in favor of religious litigants, . . . when they do, they affirm only Christian beliefs that oppose LGBT identities,” leading the survey authors to state, “[I]nstitutional judicial interpretations grant more legitimacy to religious litigants opposed to LGBT rights compared to those supportive of LGBT rights. These rulings thus foreclose acknowledgement of how Christian denominations, including evangelical Protestant ones, reach different interpretations of faith to affirm and to support LGBT people.”⁹¹Kazyak et al., supra note 62, at 1404. However, it’s important to remember that only one case in that survey involved a pro-LGBTQ+ Free Exercise Clause claim, and even then, only tangentially.⁹²Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (employment discrimination case brought by an employee of the Georgia State Attorney’s office fired after marrying her partner in a Jewish ceremony that was decided on the ground of the plaintiff’s right to intimate association with only a concurrence addressing the free religious exercise claim in any detail). Thus, how courts would treat pro-LGBTQ+ religious beliefs under a fulsome application of the Free Exercise Clause doctrine remains untested. The prospects for success seem good, though, given that doctrine’s expansive view of religion:

Courts have generally considered a lot of things to count as religion. In fact, religious beliefs are protected even when they don’t match up to the rules or ideas expressed by . . . the leaders of a particular religion. . . .

Beliefs are considered religious, and therefore protected by the First Amendment as long as they play “the role of a religion and function as a religion” in your life. . . ⁹³See Civil Rights Civics Institute, supra note 84; see also Tubb, supra note 90, at 338–39 (“The inquiry into a claimant’s sincerity usually includes evidence of secular incentives for the claimant to make an insincere religious claim and incongruities in the claimant’s behavior, whether in comparison to their personal religious biography or within the greater religious community. Each of these categories of evidence do not confirm sincerity but, instead, present information that could suggest the claimant may be insincere in their beliefs.” (emphasis in original) (footnotes omitted) (citing Nathan Chapman, Adjudicating Religious Sincerity, 92 Wash. L. Rev. 1185, 1231 (2017))). But see id. at 341 (“In most religious accommodation and exemption claims made by Christians, the sincerity analysis is reduced to a single sentence in the opinion, where the Court regurgitates something along the lines of, ‘the sincerity of the claimant’s religious beliefs is undisputed,’ or ‘the court does not question the claimant’s sincerity.’ Conversely, the assumption of sincerity is substantially less common for members of minority religions and secular organizations, where courts tend to conduct a far more dubious examination of a claimant’s religious beliefs.” (footnotes omitted)).

Particularly given the recent trend, discussed in Part II, of courts expanding the scope of this already broad Free Exercise Clause doctrine, these types of pro-LGBTQ+ religious rights claims seem to hold promise.⁹⁴Cf. Jessie Hill, Religious Freedom Claims Could Provide New Path to Protect Abortion Rights, State Ct. Rep. (Mar. 8, 2026), https://statecourtreport.org/our-work/analysis-opinion/religious-freedom-claims-could-provide-new-path-protect-abortion-rights [https://perma.cc/L6EW-G7XB] (“Relying on conservative courts’ increasing sympathy toward religious freedom claims, the challengers in these lawsuits [against abortion bans] are likely betting that what’s good for the goose is good for the gander.”).

Indeed, it would arguably be highly hypocritical for the same courts that expanded religious freedoms to protect anti-LGBTQ+ religious beliefs to turn around and deny pro-LGBTQ+ religious beliefs the same level of protection. For example, returning to the hypothetical example of a Two Spirit-identifying individual challenging a law rigidly defining sex and gender, under a test akin to the “peace-and-good-order” test announced by the Virginia Supreme Court in Vlaming, it would seem hard, if not impossible, for a state to successfully argue that a Two Spirit-identifying individual simply existing and performing a spiritual role in their community, or in specific religious ceremonies, constitutes an “overt act against peace and good order.” Likewise, looking at same-sex marriage, under Mahmoud, it would seem hard for a state to argue that a law banning same-sex marriage was not “clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected.”⁹⁵Mahmoud v. Taylor, 606 U.S. 522, 550 (2025) (citation omitted). For both example claims, courts’ latitude to question the nature and sincerity of plaintiffs’ religious beliefs is narrow.⁹⁶See Ari Berman, Note, The Religious Exception to Abortion Bans: A Litigation Guide to State RFRAs, 76 Stan. L. Rev. 1129, 1148 (2024) (“Sincerely held belief is a factual inquiry. It is not meant to be an onerous standard, largely because courts cannot interrogate the substance of a plaintiff’s belief. Federal courts therefore have found that sincerely held beliefs can be ‘mistaken or insubstantial,’ idiosyncratic or unorthodox, and not central to a system of religious beliefs. Courts merely ask if the plaintiff is religiously motivated . . . or, in essence, if the plaintiff is ‘seeking to perpetrate a fraud on the court.’” (footnotes omitted) (emphasis in original)). Indeed, as has been discussed, at least one federal appellate judge has already regarded a plaintiff’s religious belief in same-sex marriage as sincere—and that was back in the 1990s, before same-sex marriage was more widely accepted.⁹⁷See Shahar v. Bowers, 114 F.3d 1097, 1118 (11th Cir. 1997) (Tjoflat, J., specially concurring).

Finally, the prospects of pro-LGBTQ+ religious claims succeeding can be assessed by examining the similarly religiously controversial issue of abortion rights. After the U.S. Supreme Court overturned the federal right to abortion in Dobbs v. Jackson Women’s Health Organization,⁹⁸597 U.S. 215 (2022). some scholars have urged that freedom of religious exercise principles should protect abortion rights,⁹⁹See generally Berman, supra note 96; Micah Schwartzman & Richard Schragger, Religious Freedom and Abortion, 108 Iowa L. Rev. 2299 (2023). and indeed, some such claims have found success in state courts.¹⁰⁰See, e.g., Hill, supra note 94 (noting that pro-abortion religious rights “cases have so far had mixed results”). In one prominent example, an appellate court in Indiana “recently found a religious right to abortion under the state’s religious freedom statute” using an “analysis [that] is doctrinally orthodox, closely following U.S. Supreme Court precedent applying the First Amendment’s Free Exercise Clause.”¹⁰¹Frederick Mark Gedicks, Religious Right to Abortion: A Recent U.S. Appeals Court Decision, BYU Law Int’l Ctr. for L. & Religious Stud. (Apr. 12, 2024), https://talkabout.iclrs.org/2024/04/12/a-religious-right-to-abortion-a-recent-u-s-appeals-court-decision/ [https://perma.cc/FM6S-AXVD].

Thus, while the ultimate success of pro-LGBTQ+ religious rights claims in U.S. courts is uncertain, there are many indications that they could be at least partially successful and start creating inroads against anti-LGBTQ+ religious conservatives’ dominance in Free Exercise Clause cases.¹⁰²Cf. Tubb, supra note 90, at 351–52 (“In the wake of the Hobby Lobby decision, conservative political groups found substantial momentum in their strategic use of RFRA [Religious Freedom Restoration Act] claims to further political and economic interests. Meanwhile, as courts continue to expand RFRA’s reach, politically progressive groups began to utilize a similar approach on the opposing side of the partisan divide. . . . Within the past decade, . . . progressive activists began to make some headway using RFRA to challenge immigration laws.” (footnotes omitted)).

IV. Conclusion

LGBTQ+ rights are currently under immense attack in the United States. Many of these attacks are driven and justified by the anti-LGBTQ+ beliefs of religious conservatives, who have seen their beliefs vindicated in courts across the country. In fact, courts’ sympathy to these anti-LGBTQ+ religious beliefs has led them to push constitutional doctrines of free religious exercise into new, expansive territory. Yet, they have done so in broad, sweeping language that creates an opportunity for LGBTQ+-rights advocates. No religion, let alone any specific religious belief, is monolithically anti-LGBTQ+, and many religions have tenets that are affirmatively supportive of LGBTQ+ people. Moreover, even non-religious LGBTQ+ people have a religious freedom right to not have other people’s religious beliefs forced upon them. Thus, “any discussion concerning religion and LGBT rights . . . fundamentally involves the freedom of religion of both parties.”¹⁰³Endsjø, supra note 9, at 1687. By taking the novel step of bringing this conflict of religious rights into the courtroom, LGBTQ+-rights advocates could potentially turn recent precedents embracing a wide conception of religious rights on their head, undermining the anti-LGBTQ+ movement’s reliance on religion to justify their actions and grounding protections for LGBTQ+ people in the explicit text of the U.S. Constitution’s First Amendment.

Morgan Munroe, J.D. Class of 2026, N.Y.U. School of Law.

Suggested Citation: Morgan Munroe, Strange Bedfellows: Using Religious Rights to Protect LGBTQ+ Rights, N.Y.U. J. Legis. & Pub. Pol’y: Quorum (2026).

Notes

• 1
  Obergefell v. Hodges, 576 U.S. 644, 734 (2015) (Thomas, J., dissenting).
• 2
  Jack M. Balkin, Part I: Obergefell v. Hodges: A Critical Introduction, in What Obergefell v. Hodges Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Same-Sex Marriage Decision 3, 51 (Jack M. Balkin ed., 2020).
• 3
  Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617, 623–24 (2018).
• 4
  Id. at 640.
• 5
  Id.
• 6
  303 Creative LLC v. Elenis, 600 U.S. 570, 596 (2023).
• 7
  Id. at 623 (Sotomayor, J., dissenting).
• 8
  Id. at 619–21 (discussing the religious objections that were raised to the Civil Rights Act of 1964 and to integration efforts more broadly, such as in cases like Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968)).
• 9
  Dag Øistein Endsjø, The Other Way Around? How Freedom of Religion May Protect LGBT Rights, 24 Int’l J. Hum. Rts. 1681, 1684 (2020).
• 10
  Mahmoud v. Taylor, 606 U.S. 522 (2025).
• 11
  Id. at 533.
• 12
  Id. at 535 (emphasis added) (internal quotation marks omitted).
• 13
  See id. at 597 (Sotomayor, J., dissenting) (“The Board directed the schools to use the new books in the same manner as all other books in the English language program, namely, to ‘assist students with mastering reading concepts like answering questions about characters, retelling key events about characters in a story, and drawing inferences about story characters based on their actions.’ The Board made clear to individual schools that ‘there is no planned explicit instruction on gender identity and sexual orientation in elementary school,’ using the Storybooks or otherwise.” (citation omitted)).
• 14
  Id. at 546 (majority opinion) (cleaned up).
• 15
  Id. at 550 (citation omitted).
• 16
  Id. at 597 (Sotomayor, J., dissenting); see also id. at 596 (“Because the majority selectively excerpts the book in order to rewrite its story, readers are encouraged to go directly to the source, reproduced below.”).
• 17
  406 U.S. 205 (1972).
• 18
  Id. at 209.
• 19
  Id. at 218.
• 20
  Mahmoud, 606 U.S. at 553 (quoting Yoder, 406 U.S. at 218).
• 21
  Yoder, 406 U.S. at 218 (emphasis added); see also id. (“The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable.”).
• 22
  See id. (“[The Amish] must either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region.” (emphasis added)).
• 23
  Id. at 219 (emphasis added).
• 24
  Mahmoud, 606 U.S. at 553 (emphasis added).
• 25
  Yoder, 406 U.S. at 234–35 (emphasis added).
• 26
  Id. at 236.
• 27
  Id. at 235.
• 28
  Mahmoud, 606 U.S. at 628–29 (Sotomayor, J., dissenting) (“[T]he point of the Board’s program is to ensure that diverse groups of students are represented in reading materials across the curriculum. The Board cannot accomplish that purpose simply by consolidating all books involving LGBTQ characters into a single inclusivity hour and allowing opt outs, as the majority appears to believe. That approach would emphasize difference rather than sameness and foster exclusion rather than inclusion. The point of inclusivity is to use books representing a diversity of identities and viewpoints the same way one might use any other book, communicating that one’s LGBTQ classmates should be treated in the same manner as anyone else.” (citation omitted)).
• 29
  Mahmoud, 606 U.S. at 608 (Sotomayor, J., dissenting) (emphasis added) (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 457, 451 (1988)).
• 30
  The Mahmoud majority even says as much when they say that the district’s use of the books “substantially interferes with the religious development of children.” Id. at 549 (majority opinion) (cleaned up).
• 31
  Id. at 593 (Sotomayor, J., dissenting).
• 32
  Vlaming v. W. Point Sch. Bd., 895 S.E.2d 705 (Va. 2023).
• 33
  Id. at 721 (citations omitted).
• 34
  Sherbert v. Verner, 374 U.S. 398, 403 (1963).
• 35
  Vlaming, 895 S.E.2d at 723.
• 36
  Id. at 751 (Powell, J., concurring in part) (emphasis added) (citations omitted).
• 37
  Id. at 749.
• 38
  Id.
• 39
  Id.
• 40
  Id.
• 41
  See Mahmoud v. Taylor, 606 U.S. 522, 627 (2025) (Sotomayor, J., dissenting) (“What the majority elides, however, is that its ruling is not limited to a set of five storybooks. . . . The logic of the Court’s ruling will also apply to countless other topics, interactions, and activities that may conflict with a parent’s religious preferences.”); Vlaming, 895 S.E.2d at 752 (Mann, J., concurring in part and dissenting in part) (“Regarding Vlaming’s free-exercise claim, the majority establishes a sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either.”).
• 42
  See, e.g., Sarah Moore, 150+ Anti-LGBTQ Incidents Targeted Religious Communities in the US, According to Newly Released Data from GLAAD’s ALERT Desk, GLAAD (Apr. 15, 2025), https://glaad.org/anti-lgbtq-incidents-target-religious-communities/ [https://perma.cc/PWP7-K7UX]  (quoting Presiding Bishop Elizabeth Eaton of the Evangelical Lutheran Church in America saying, “Bullying and discrimination have no place in the body of Christ, but, sadly, reminders are still needed. Jesus’ command that we love one another does not come with a caveat about who we are to love.”).
• 43
  Endsjø, supra note 9, at 1683.
• 44
  Id. at 1684 (footnotes omitted).
• 45
  Id. (emphasis added) (footnotes omitted).
• 46
  Id.; see also Sister Jeannine Gramick, From Conflict to Coexistence: The Catholic Response to the LGBT Community, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground 119, 129 (William N. Eskridge, Jr. & Robin Fretwell Wilson eds., 2019) (“Pope Francis has called for a new way of treating LGBT people and others on the periphery of the institutional Church—specifically, ending the obsession with issues such as abortion, same-sex marriage, and contraception. Pope Francis said that the Church sometimes seems locked up ‘in small-minded rules’ and forgets the most important message, proclaiming that Jesus Christ has saved humanity.”).
• 47
  Tony Enos, 8 Things You Should Know About Two Spirit People, ICT News (Mar. 28, 2017), https://ictnews.org/archive/8-misconceptions-things-know-two-spirit-people/ [https://perma.cc/2F37-RRS5].
• 48
  Two-Spirit, Indian Health Serv., https://www.ihs.gov/lgbt/twospirit/ [https://perma.cc/N44U-T2RP].
• 49
  Abel R. Gomez, Two-Spirit Indigenous Peoples Building on Legacies of Gender Variance, The Revealer (Oct. 6, 2022), https://therevealer.org/two-spirit-indigenous-peoples-building-on-legacies-of-gender-variance/ [https://perma.cc/HF8E-A8AP].
• 50
  Id.
• 51
  Id. (quoting an account of this creation story told by “Two-Spirit and non-binary cultural leader Geo Neptune (Passamaquoddy)”).
• 52
  Id.; see also id. (“Two-Spirit activist L. Frank Manriquez (Tongva, Rarámuri, Acjachemen) says that in Native California, ‘We permeated the sacred and the profane parts of life…Historically, we Two-Spirit have always been those who can do what others cannot do but need to be done.’”).
• 53
  Id.; see also id. (quoting Mohawk performance artist Aiyyana Maracle saying, “Though I may fit the definition of the European concept of transsexuality, as far as I am concerned, my being and transformation are based in the historical continuum of North America’s Indigenous people.”).
• 54
  Enos, supra note 47.
• 55
  The Editors of Encyclopaedia Britannica, 6 Cultures That Recognize More than Two Genders, Britannica, https://www.britannica.com/list/6-cultures-that-recognize-more-than-two-genders [https://perma.cc/TPG8-S7WG] (last visited Oct. 20, 2025).
• 56
  Shiva Prakash Srinivasan & Sruti Chandrasekaran, Transsexualism in Hindu Mythology, 24 Indian J. Endocrinology & Metabolism 235, 236 (2020).
• 57
  Ina Goel, India’s Third Gender Rises Again, Sapiens (Sep. 26, 2019), https://www.sapiens.org/biology/hijra-india-third-gender/ [https://perma.cc/7AF8-BV9A].
• 58
  The Editors of Encyclopaedia Britannica, supra note 55.
• 59
  Goel, supra note 57.
• 60
  Id.
• 61
  See Tracking the Rise of Anti-Trans Bills in the U.S., Trans Legis. Tracker, https://translegislation.com/learn [https://perma.cc/XU2Z-WXW6] (last visited Oct. 18, 2025).
• 62
  Emily Kazyak et al., Making the Case: Examining Outcomes of Religious‑Based Claims in Federal Litigation Involving LGBT Rights, 20 Sexuality Rsch. & Soc. Pol’y 1393, 1393, 1398 (2023).
• 63
  This Article’s discussion of the pro-LGBTQ+ cases included in the survey’s results is limited to the six such cases named and discussed in the published study, cited supra note 62. That published study is largely a summary of empirical results and does not include a full list of the cases that make up those results, nor does it mention or describe all of the cases. The full database of cases will not be “made publicly available [until] five years after the completion of the project,” per the terms of the grant that funded the study. Id. at 1404.
• 64
  Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997). The survey identified three other cases involving claims of employment discrimination on the basis of sexual orientation that also involved pro-LGBTQ+ religious beliefs but that did not involve a Free Exercise Clause claim: an Establishment Clause claim and a statutory sexual orientation discrimination claim under state and federal civil rights statutes against a religious organization that received state funds, Pedreira v. Ky. Baptist Homes for Child., Inc., 579 F.3d 722 (6th Cir. 2009) (lesbian social worker fired from state-funded anti-LGBTQ+ religious organization that helped neglected or abused children); a statutory religious discrimination claim under Title VII, Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618 (6th Cir. 2000) (lesbian woman who was an ordained minister in a pro-LGBTQ+ Christian church fired by her employer, an anti-LGBTQ+ Baptist organization); and a Title VII sexual harassment suit against a religious employer, Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648 (10th Cir. 2002) (lesbian employee subjected to anti-LGBTQ+ statements by coworkers and eventually fired by church at which she was a youth minister).Kazyak et al., supra note 62, at 1398–99.
• 65
  Shahar, 114 F.3d at 1111 n.27 (“That the Attorney General did not revoke Shahar’s offer because of her religious affiliation or her religious beliefs (as opposed to her conduct) is plain from the record. Assuming arguendo that the Attorney General’s decision to revoke Shahar’s offer did implicate her Free Exercise rights, we believe that Pickering balancing applies, and that the Attorney General prevails in that balance for the reasons discussed above. In addition, several of us also doubt that a facially neutral executive act which adversely impacts on the exercise of one’s religion either constitutes a violation of the Free Exercise Clause or requires heightened scrutiny.” (citation omitted)).
• 66
  Id. at 1118 (Tjoflat, J., specially concurring).
• 67
  Barnes-Wallace v. City of San Diego, 704 F.3d 1067 (9th Cir. 2012).
• 68
  Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017).
• 69
  Endsjø, supra note 9, at 1682.
• 70
  Id. at 1695.
• 71
  Ferguson v. Att’y Gen., [2018] SC (Bda) 45 Civ.
• 72
  Id. ¶ 20.
• 73
  Id. ¶ 72 (describing the rights protected by the relevant portion of the Bermuda Constitution as the “freedom to hold religious and non-religious beliefs,” the “freedom to change such beliefs,” and the “freedom to manifest and propagate such beliefs in ‘worship, teaching or practice’” (emphasis in original)).
• 74
  Id. ¶ 90.
• 75
  The relevant portion of the Bermuda Constitution reads: “Except with his consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief and freedom, either alone or in community with others, and both in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.” Bermuda Constitution Order 1968, Feb. 21, 1968, sched. 2, ch. 1, § 8(1) (Berm.).
• 76
  See Ferguson, SC (Bda) 45 Civ, ¶ 73–74 (quoting Royal Bahamas Defence Force and others-v-Laramore [2017] UKPC 13) (“‘The conferral or guarantee of freedom of conscience or religion constitutes a promise that such freedom will be protected, and not interfered with by, the state. . . . Freedom of conscience is in its essence a personal matter. It may take the form of belief in a particular religion or sect, or it may take the form of agnosticism or atheism. It is by reference to a person’s particular subjective beliefs that it must be judged whether there has been a hindrance.’”).
• 77
  Shahar v. Bowers, 114 F.3d 1097, 1118 (11th Cir. 1997) (Tjoflat, J., specially concurring).
• 78
  Ferguson, SC (Bda) 45 Civ, ¶ 80. The Bermuda Supreme Court does go beyond mere self-evidence to justify finding the plaintiff’s religious beliefs are genuine, but that justification is still not as detailed as the Shahar concurrence’s review of the factual record. Instead, the Bermuda Supreme Court rests its finding mainly on the general proposition that “[t]he battle over ownership of the very idea of marriage in Bermuda and elsewhere is irresistible proof of the fact that a belief in marriage matters.” Id.
• 79
  Shahar, 114 F.3d at 1118 (Tjoflat, J., specially concurring)(“The record establishes that homosexual ‘marriages’ are recognized by a part of the Reconstructionist movement of the Jewish faith. In addition, the record shows that Shahar [the plaintiff] and her partner are life-long Jews and that they have been active in a Jewish congregation which ministers to homosexuals and recognizes homosexual ‘marriages.’ Shahar’s wedding ceremony was performed by a rabbi and was otherwise quite similar to a traditional Jewish wedding between a man and a woman.”).
• 80
  Cf. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 725 (2014) (in the context of the Religious Freedom Restoration Act, explaining that “it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our ‘narrow function … in this context is to determine’ whether the line drawn reflects ‘an honest conviction’”).
• 81
  Endsjø, supra note 9, at 1686.
• 82
  Id.
• 83
  Id. at 1687.
• 84
  Id. at 1685 (emphasis in original); see also Civil Rights Civics Institute, Religious Freedom, Am. Bar Ass’n, https://www.americanbar.org/groups/crsj/about/initiatives/civil-rights-civics-institute/religious-freedom/ [https://perma.cc/GA57-JNQX] (last visited Oct. 18, 2025) (“Under the U.S. Constitution, religious freedom is the right for everyone to practice his or her religion, or to choose not to practice a religion at all. By giving everyone the right to practice or not to practice a religion, the Constitution preserves this liberty and requires that all religions, and the beliefs of those who do not subscribe to a religion, be respected.”); Sign the Christians Against Christian Nationalism Statement, Christians Against Christian Nationalism, https://www.christiansagainstchristiannationalism.org/statement [https://perma.cc/X2S5-G8RL] (last visited Oct. 18, 2025) (“One’s religious affiliation, or lack thereof, should be irrelevant to one’s standing in the civic community.”).
• 85
  Endsjø, supra note 9, at 1686.
• 86
  See, e.g., Mapping Attacks on LGBTQ Rights in U.S. State Legislatures in 2025, ACLU (Sep. 19, 2025), https://www.aclu.org/legislative-attacks-on-lgbtq-rights-2025?impact=rights__sex [https://perma.cc/73A6-MN23] (showing that, in 2025 alone, there were 38 bills introduced in state legislature that sought to re-define sex, 5 of which passed into law); Joshua Arrayales & Elana Redfield, Williams Inst. at UCLA Sch. of L., The Impact of 2025 State Anti-Transgender Legislation on Youth 20 (2026), https://williamsinstitute.law.ucla.edu/publications/anti-trans-legislation-youth/ [https://perma.cc/MJ5X-HM49] (reporting that, in recent years, 15 states have enacted laws defining “sex” as sex assigned at birth).
• 87
  Cf. Edwards v. State, No. DV-23-1026, slip op. at 30 (Mont. Dist. Ct. Feb. 18, 2025) (holding unconstitutional a Montana law rigidly defining “male” and “female” in part because the law discriminated on the basis of culture, in violation of the Montana Constitution’s equal protection guarantees, since “Two Spirit individuals possess gender identities which do not align with [the law’s definitions], as ‘many Indigenous cultures reject the gender binary.’”).
• 88
  See Steven Romo, A Decade After the U.S. Legalized Gay Marriage, Jim Obergefell Says the Fight Isn’t Over, NBC News (June 26, 2025, 5:00 AM), https://www.nbcnews.com/nbc-out/out-politics-and-policy/us-gay-marriage-legal-10-year-anniversary-obergefell-supreme-court-rcna211276 [https://perma.cc/T3VK-CRKL] (“Over the past several months, Republican lawmakers in at least 10 states have introduced measures aimed at undermining same-sex marriage rights. These measures, many of which were crafted with the help of the anti-marriage equality group MassResistance, seek to ask the Supreme Court to overturn Obergefell.”).
• 89
  Ferguson v. Att’y Gen., [2018] SC (Bda) 45 Civ., ¶ 112.
• 90
  Kazyak et al., supra note 62, at 1404; see also E Kathryn Tubb, Comment, Sincerity, Subjectivity & Religion: The Evolution of RFRA from a Constitutional Shield to a Political Sword, 75 Okla. L. Rev. 319, 344 (2023) (“[M]inority belief systems ‘bear the brunt of the [religious] definition and the sincerity inquiries,’ as a court is ‘more likely to find that a religious belief is insincere when the belief in question is, by cultural norms, incredulous.’ Consequently, religious claims involving beliefs that ‘closely parallel or directly relate to the culture’s predominate religious traditions’ are most likely to be recognized by judges.” (footnotes omitted) (quoting William P. Marshall, Correspondence on Free Exercise Revisionism: In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 311 (1991))).
• 91
  Kazyak et al., supra note 62, at 1404.
• 92
  Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (employment discrimination case brought by an employee of the Georgia State Attorney’s office fired after marrying her partner in a Jewish ceremony that was decided on the ground of the plaintiff’s right to intimate association with only a concurrence addressing the free religious exercise claim in any detail).
• 93
  See Civil Rights Civics Institute, supra note 84; see also Tubb, supra note 90, at 338–39 (“The inquiry into a claimant’s sincerity usually includes evidence of secular incentives for the claimant to make an insincere religious claim and incongruities in the claimant’s behavior, whether in comparison to their personal religious biography or within the greater religious community. Each of these categories of evidence do not confirm sincerity but, instead, present information that could suggest the claimant may be insincere in their beliefs.” (emphasis in original) (footnotes omitted) (citing Nathan Chapman, Adjudicating Religious Sincerity, 92 Wash. L. Rev. 1185, 1231 (2017))). But see id. at 341 (“In most religious accommodation and exemption claims made by Christians, the sincerity analysis is reduced to a single sentence in the opinion, where the Court regurgitates something along the lines of, ‘the sincerity of the claimant’s religious beliefs is undisputed,’ or ‘the court does not question the claimant’s sincerity.’ Conversely, the assumption of sincerity is substantially less common for members of minority religions and secular organizations, where courts tend to conduct a far more dubious examination of a claimant’s religious beliefs.” (footnotes omitted)).
• 94
  Cf. Jessie Hill, Religious Freedom Claims Could Provide New Path to Protect Abortion Rights, State Ct. Rep. (Mar. 8, 2026), https://statecourtreport.org/our-work/analysis-opinion/religious-freedom-claims-could-provide-new-path-protect-abortion-rights [https://perma.cc/L6EW-G7XB] (“Relying on conservative courts’ increasing sympathy toward religious freedom claims, the challengers in these lawsuits [against abortion bans] are likely betting that what’s good for the goose is good for the gander.”).
• 95
  Mahmoud v. Taylor, 606 U.S. 522, 550 (2025) (citation omitted).
• 96
  See Ari Berman, Note, The Religious Exception to Abortion Bans: A Litigation Guide to State RFRAs, 76 Stan. L. Rev. 1129, 1148 (2024) (“Sincerely held belief is a factual inquiry. It is not meant to be an onerous standard, largely because courts cannot interrogate the substance of a plaintiff’s belief. Federal courts therefore have found that sincerely held beliefs can be ‘mistaken or insubstantial,’ idiosyncratic or unorthodox, and not central to a system of religious beliefs. Courts merely ask if the plaintiff is religiously motivated . . . or, in essence, if the plaintiff is ‘seeking to perpetrate a fraud on the court.’” (footnotes omitted) (emphasis in original)).
• 97
  See Shahar v. Bowers, 114 F.3d 1097, 1118 (11th Cir. 1997) (Tjoflat, J., specially concurring).
• 98
  597 U.S. 215 (2022).
• 99
  See generally Berman, supra note 96; Micah Schwartzman & Richard Schragger, Religious Freedom and Abortion, 108 Iowa L. Rev. 2299 (2023).
• 100
  See, e.g., Hill, supra note 94 (noting that pro-abortion religious rights “cases have so far had mixed results”).
• 101
  Frederick Mark Gedicks, Religious Right to Abortion: A Recent U.S. Appeals Court Decision, BYU Law Int’l Ctr. for L. & Religious Stud. (Apr. 12, 2024), https://talkabout.iclrs.org/2024/04/12/a-religious-right-to-abortion-a-recent-u-s-appeals-court-decision/ [https://perma.cc/FM6S-AXVD].
• 102
  Cf. Tubb, supra note 90, at 351–52 (“In the wake of the Hobby Lobby decision, conservative political groups found substantial momentum in their strategic use of RFRA [Religious Freedom Restoration Act] claims to further political and economic interests. Meanwhile, as courts continue to expand RFRA’s reach, politically progressive groups began to utilize a similar approach on the opposing side of the partisan divide. . . . Within the past decade, . . . progressive activists began to make some headway using RFRA to challenge immigration laws.” (footnotes omitted)).
• 103
  Endsjø, supra note 9, at 1687.