Published online by Cambridge University Press: 26 August 2021
1 Wilson, Robin Fretwell, “The Nonsense about Bathrooms: How Purported Concerns over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns,” Lewis & Clark Law Review 20, no. 4 (2017): 1373–458Google Scholar.
2 See generally William N. Eskridge Jr. and Robin Fretwell Wilson, eds., Religious Freedom, LGBT Rights, and the Prospects for Common Ground (Cambridge: Cambridge University Press, 2019).
3 See generally Wilson, Robin Fretwell, “Being Transgender in the Era of Trump: Compassion Should Pick Up Where Science Leaves Off,” UC Irvine Law Review 8, no. 4 (2018): 583–616Google Scholar.
4 Ilan H. Meyer, “Factsheet: Experiences of Discrimination among Lesbian, Gay, and Bisexual People in the United States,” Williams Institute (April 2019), https://williamsinstitute.law.ucla.edu/publications/lgb-discrimination-experiences/; Jaime M. Grant, et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (Washington, DC: National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011), https://transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf.
5 Shirley Hoogstra and Robin Fretwell Wilson, “Fairness as a Path Forward on LGBTQ Rights and Religious Liberty,” in The Routledge Handbook of Religious Literacy, Pluralism and Global Engagement, ed. Chris Seiple and Dennis R. Hoover (Abingdon, Routledge, forthcoming), ch. 32.
6 Emma Green, “America Moved On from Its Gay-Rights Movement—and Left a Legal Mess Behind,” The Atlantic, August 17, 2019, https://www.theatlantic.com/politics/archive/2019/08/lgbtq-rights-america-arent-resolved/596287/.
7 “In U.S., Decline of Christianity Continues at Rapid Pace,” Pew Research Center, October 19, 2019, https://www.pewforum.org/2019/10/17/in-u-s-decline-of-christianity-continues-at-rapid-pace/; see also “The 2020 Census of American Religion,” Public Religion Research Institute, July 8, 2021, https://www.prri.org/research/2020-census-of-american-religion/.
8 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719 (2018); see also Robin Fretwell Wilson and Tanner J. Bean, “Why Jack Phillips Still Cannot Make Wedding Cakes: Deciding Competing Claims under Old Laws,” Berkley Forum, June 29, 2018, https://berkleycenter.georgetown.edu/responses/why-jack-phillips-still-cannot-make-wedding-cakes-deciding-competing-claims-under-old-laws.
9 Masterpiece Cakeshop, 138 S. Ct. at 1729.
10 Masterpiece Cakeshop, 138 S. Ct. at 1731.
11 Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021) (citing Masterpiece Cakeshop, 138 S. Ct. at 1730–32).
12 Mark A. Kellner, “Jack Phillips, a Christian Baker, Hounded by Lawsuits, Threats Years after Supreme Court Ruling,” Washington Times, May 27, 2021, https://www.washingtontimes.com/news/2021/may/27/jack-phillips-a-christian-baker-hounded-by-lawsuit/; Colleen Slevin, “Lakewood Baker Jack Phillips Sued for Refusing Gender Transition Cake,” March 22, 2021, https://denver.cbslocal.com/2021/03/22/jack-phillips-masterpiece-cakeshop-lakewood-transgender/.
13 Robin Fretwell Wilson, “Bathrooms and Bakers: How Sharing the Public Square Is the Key to a Truce in the Culture Wars,” in Eskridge and Wilson, Religious Freedom, LGBT Rights, and the Prospects for Common Ground, 402–20.
14 Fulton, 141 S. Ct. at 1882.
15 Fulton, 141 S. Ct. at 1878.
16 Fulton, 141 S. Ct. at 1882. Chief Justice Roberts delivered the opinion of the court, which was joined by five other justices. Justices Alito, Gorsuch, and Thomas joined concurring opinions.
17 Fulton, 141 S. Ct. at 1882 (citing Employment Division v. Smith, 494 U.S. 872, 878–82 (1990)).
18 Fulton, 141 S. Ct. at 1923 (quoting Smith, 494 U.S. at 884).
19 Fulton, 141 S. Ct. at 1882.
20 Fulton, 141 S. Ct. at 1878.
21 Brief of Amici Curiae Former Foster Children and Foster Parents and The Catholic Association Foundation in Support of Petitioners at 24, Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) (No. 19-123), https://www.supremecourt.gov/DocketPDF/19/19-123/111435/20190807105229308_19-123%20Amicus%20Brief--PDFA.pdf.
22 Brief of Amicus Curiae New Civil Liberties Alliance in Support of Petitioners at 3–4, Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) (No. 19-123), https://www.supremecourt.gov/DocketPDF/19/19-123/144805/20200603151951198_NCLA%20amicus%20brief%20Fulton%20v%20City%20of%20Philadelphia%2019-123.pdf.
23 Brief of Amici Curiae Center for the Study of Social Policy and National Center for Lesbian Rights in Support of Petitioners at 31, Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) (No. 19-123), https://www.supremecourt.gov/DocketPDF/19/19-123/150666/20200819151844579_19-123%20bsac%20CSSP%20and%20NCLR.pdf.
24 See, for example, “The Trevor Project Responds to the Supreme Court's Decision in Fulton v. City of Philadelphia,” Trevor Project (blog), June 17, 2021, https://www.thetrevorproject.org/trvr_press/the-trevor-project-responds-to-the-supreme-courts-decision-in-fulton-v-city-of-philadelphia/#:~:text=Statement%20from%20Amit%20Paley%2C%20CEO%20and%20Executive%20Director,the%20Supreme%20Court%20today%20and%20internalizing%20that%20news; “Supreme Court Decision Does Not Create a License to Discriminate,” American Civil Liberties Union, June 17, 2021, https://www.aclu.org/press-releases/supreme-court-decision-does-not-create-license-discriminate.
25 U.S. Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families, Children's Bureau, “The AFCARS Report: Preliminary FY 2019 Estimates,” June 23, 2020, 1, https://www.acf.hhs.gov/sites/default/files/documents/cb/afcarsreport27.pdf.
26 For a longer discussion, see Robin Fretwell Wilson, “From Marriage to Children: Could We Not Find Common Ground?,” Balkinization (blog), October 8, 2020, https://balkin.blogspot.com/2020/10/from-marriage-to-children-could-we-not.html.
27 Fulton, 141 S. Ct. at 1886 (Alito, J. concurring) (“As far as the record reflects, no same-sex couple has ever approached CSS, but if that were to occur, CSS would simply refer the couple to another agency that is happy to provide that service—and there are at least 27 such agencies in Philadelphia.”); see also Yonat Shimron, “Supreme Court Rules in Favor of Catholic Foster Care Agency, in Narrow Win for Religious Rights,” Religion News Service, June 17, 2021, https://religionnews.com/2021/06/17/supreme-court-rules-in-favor-of-catholic-foster-care-agency-handing-another-win-to-religious-rights/.
28 Wilson, “From Marriage to Children.”
29 See generally Robin Fretwell Wilson, “From Marriage to Children”; Wilson, Robin Fretwell, “The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes between Religion and the State,” Boston College Law Review 53, no. 4 (2012): 1417–513Google Scholar; Tanner J. Bean and Robin Fretwell Wilson, “The Administrative State as a New Front in the Culture War: Little Sisters of the Poor v. Pennsylvania,” in Cato Supreme Court Review: 2019–2020, ed. Trevor Burrus (Washington, DC: Cato Institute, 2020), 229–61.
30 Fulton, 141 S. Ct. at 1880.
31 “Stewart Reintroduces the Fairness for All Act, U.S. Congressman Chris Stewart,” U.S. Congressman Chris Stewart (website), February 26, 2021, https://stewart.house.gov/news/documentsingle.aspx?DocumentID=704.
32 Fulton, 141 S. Ct. at 1876.
33 Doe v. Trumbull City. Children Servs. Bd., No. 4:13CV00768, 2013 WL 6903777 (N.D. Ohio Dec. 31, 2013); Moore v. Lake City. Dep't of Job & Family Servs., 364 F. App'x 194, 196 (6th Cir. 2010); Meador v. Cabinet for Human Res., 902 F.2d 474 (6th Cir. 1990).
35 Annie E. Casey Foundation, “What Are the Core Characteristics of Generation Z?,” Casey Connects (blog), April 14, 2021, https://www.aecf.org/blog/what-are-the-core-characteristics-of-generation-z/; “Millennials Are Less Religious than Older Americans, but Just as Spiritual,” Pew Research Center, November 23, 2015, https://www.pewresearch.org/fact-tank/2015/11/23/millennials-are-less-religious-than-older-americans-but-just-as-spiritual/.
36 Kim Parker and Ruth Igielnik, “On the Cusp of Adulthood and Facing an Uncertain Future: What We Know about Gen Z so Far,” Pew Research Center, May 14, 2020, https://www.pewresearch.org/social-trends/2020/05/14/on-the-cusp-of-adulthood-and-facing-an-uncertain-future-what-we-know-about-gen-z-so-far-2/; Pew Research Center, Millennials: Confident. Connected. Open to Change (Washington, DC: Pew Research Center, 2010), https://www.pewresearch.org/social-trends/2010/02/24/millennials-confident-connected-open-to-change/.
38 Stewart, Seiple, and Hoover, “Toward a Global Covenant of Peaceable Neighborhood,” 10.
39 Cicily Bennion, “#ToleranceMeans That You've Taken the First Step towards Loving Someone Different from You,” Tolerance Means Dialogues, June 17, 2019, https://www.tolerancemeans.com/essaylist/2019/6/17/cicily-bennion-graduate-brigham-young-university.
40 For the extensive media coverage of these sage voices, see “In the News,” Tolerance Means Dialogues, accessed July 24, 2021, https://www.tolerancemeans.com/about.
41 Laura Lynch, “#Tolerance Means Taking a Few Steps Back to Move Forward,” Tolerance Means Dialogues, October 15, 2019, https://www.tolerancemeans.com/essaylist/2019/10/15/laura-lynch-undergraduate-wayne-state-university.
42 Alexis Watson, “#ToleranceMeans Pioneering Friendship,” Tolerance Means Dialogues, June 17, 2019, https://www.tolerancemeans.com/essaylist/2019/6/17/alexis-watson-undergraduate-brigham-young-university.
43 Marquis Fulghum, “#ToleranceMeans That Putting Up with Someone Is Not Acceptance,” Tolerance Means Dialogues, April 7, 2021, https://www.tolerancemeans.com/essaylist/2021/4/8/marquis-fulghum-undergraduate-arizona-state-university.
44 Fulghum, “#ToleranceMeans That Putting Up with Someone Is Not Acceptance.”
45 Casey J. Krolczyk, Untitled essay, Tolerance Means Dialogues, April 5, 2018, https://www.tolerancemeans.com/essaylist/2018/4/5/casey-j-krolczyk-graduate-br-university-of-st-thomas-school-of-law.
46 Kyle Jorstad, Untitled essay, Tolerance Means Dialogues, March 22, 2019, https://www.tolerancemeans.com/essaylist/2019/3/22/kyle-jorstad-graduate-case-western-reserve-university-school-of-law.
47 Arielle Brown, “One Can Love and Be Loved,” Tolerance Means Dialogues, September 12, 2018, https://www.tolerancemeans.com/essaylist/2018/9/11/arielle-brown-graduatebruniversity-of-illinois.
48 Rebecka Green, “Seeking Intentional Pluralism,” Tolerance Means Dialogues, April 18, 2018, https://www.tolerancemeans.com/essaylist/2018/4/18/rebecka-green-undergraduate-winner-br-luther-college.
49 Blake Gibney, “Making Tolerance Reality,” Tolerance Means Dialogues, May 3, 2018, https://www.tolerancemeans.com/essaylist/2018/5/3/blake-gibney-graduate-winner-br-university-of-illinois-college-of-law.
50 Gibney, “Making Tolerance Reality.”
51 Shannon McNamara, “The Measure You Use Will Be Measured to You,” Tolerance Means Dialogues, October 15, 2018, https://www.tolerancemeans.com/essaylist/shanonmcnamara.
52 Shiloh Bentacourt, “#Sharing Your Story: Tolerance Is the Story of Getting My Mother Back,” Tolerance Means Dialogues, April 7, 2021, https://www.tolerancemeans.com/essaylist/2021/4/8/shiloh-bentacourt-graduate-arizona-state-university-sandra-day-oconnor-college-of-law.
53 Emma Baehrens, “What is Tolerance to Me?,” Tolerance Means Dialogues, March 22, 2019, https://www.tolerancemeans.com/essaylist/2019/3/22/emma-baehrens-undergraduate-ceveland-institute-of-art.
54 Jorstad, Untitled essay.