Neutrality, Public Space, and Discrimination by Religious Organizations in the United States
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Contemporary attitudes towards religious freedom in the U.S. over the past five years have been shaped largely by the rise in approval of LGBTQ rights and a fear, stemming from the confluence of the Hobby Lobby and Obergefell decisions (and reinforced by the upcoming Masterpiece Cakeshop case), that LGBTQ individuals will face religious discrimination in the commercial sphere. These attitudes are increasingly leading to renewed pressure to privatize religion. This article examines how approaches towards religion in the public sphere play a key role in understanding «neutrality», a fundamental organizing principle in U.S. church-state law. Expectations that religion belongs only in the private sphere lead to a conception of state neutrality in which the state needs to neutrally enforce only LGBTQ rights. In contrast, attitudes that are more welcoming of religion in the public square lead to understandings of neutrality where the state must neutrally enforce both LGBTQ and religious rights. Thus the increased push towards privatizing religion has a direct role in understanding state neutrality and how the state approaches discrimination by religious organizations and affiliated entities against LGBTQ individuals, a significant coming religious freedom challenge. The future of religious freedom in the United States will turn on where attitudes towards religion in the public square end up settling.