Abstract
The disestablishment of religion, also commonly referred to as the separation of church and state or separation of religion and government, has been a salutary constitutional principle in the United States. The diminishment of the disestablishment of religion by the U.S. Supreme Court and accelerated superordination of (conservative) Christianity—like so much of the output of the Supreme Court under Chief Justice John Roberts—threatens justice in the United States, a nation that is still in significant respects antiqueer. In particular, the Roberts Court’s decisions are weakening the disestablishment of religion and upholding as constitutional greater governmental reliance on and support of religion—or even holding that such increased support is required by the U.S. Constitution.
The Court’s ongoing reestablishment of religion threatens to undermine this century’s progress on sexual orientation– and gender identity–related rights. This Essay first examines the kinds of antiLGBTQ backlash fueling the constitutional reestablishment of religion. It describes some forms of political actions seen in response, and in opposition, to progress on sexual orientation– and gender identity–related rights. This Essay also describes a variety of circumstances under which LGBT people have relied on the constitutional disestablishment of religion as a defense against anti-LGBT political action. After describing various respects in which the Roberts Court has changed constitutional doctrine respecting religion, the Essay closes by raising questions about potential future changes in Establishment Clause doctrine that could be even more far-reaching as the Republican-appointed, conservative supermajority of the Supreme Court continues its apparent mission of doctrinal revision and upheaval.
