Religious Influence on Court Cases Concerning Gender and Sexuality

Reynolds v. United States, 98 U.S. 145 (1879)

Decision date: January 6, 1879

Question Presented

Can religious beliefs be accepted as “justification of an overt act made criminal but the law of the land?”


While Congress may not prohibit pass a law prohibiting the freedom of religion, freedom of belief is not equivalent to freedom of practice. Citizens do not have the freedom to break the laws in the name of their religious beliefs.

Case Summary

Reynolds, a member of The Church of Jesus Christ of Latter-Day Saints, was convicted of polygamy which violated the Morrill Anti-Bigamy Act. Reynolds appealed to the Utah Territorial Supreme Court, which upheld to conviction. Reynolds appealed his case to the Supreme Court, arguing the judge had erred by refusing to tell the jury that Reynolds could not be found guilty of Polygamy if he had not acted with criminal intent, but to uphold what he “believed at the time to be a religious duty.” However, the Supreme Court upheld his previous convection, stating, “[p]olygamy has always been odious among the northern and western nations,” and recognizing the historic punishment was the death penalty.

How was Religion a factor? 

The trial court instructed the jury to “consider what are to be the consequences for the innocent victims of this delusion. While the court seems to be addressing the misogynistic implications of polygamy, it is important to note that at the time, woman were not treated as equal citizens. Woman would not win the right to vote for decades, and they were subjected to domestic violence and rape in traditional marriage. The Supreme Court warned the jury that those who practiced Polygamy would “multiply and spread themselves across the land” causing “pure minded woman” and “innocent children” to be poisoned by the immoral practice. Thus, the decision can be seen as a protection of Christianity and Christian beliefs as the dominant religion within America rather than a protection for the woman involved in polygamous practices.

Additional Resources:

Drakeman, Donald L. Reynolds v. United States: the historical constitution of constitutional reality. Constitutional Commentary 21.3, (2004) : 697-726

This article explore the constitutional considerations and historical interpretations of the First Amendment, Chief Justice Waite explored in order to justify the court’s decision in Reynolds v. United States.

“A Blow at Polygamy.” New York Times. (1879). 

This is a New York times article published two days after the decision.

Cleveland v. United States, 329 U.S. 14 (1946)

Decision date: November 18, 1946

Question presented 

Is polygamy a immoral act prohibited by the Man Act, and if so, did petitioners religious beliefs protect them form prosecution?


Polygamy is an immoral act covered in the Mann Act, and petitioners religious beliefs to not protect them form prosecution. The Supreme Court further reaffirmed the decision in Reynolds v. United States, 98 U.S. 145 (1879), that religious belief did not protect petitioners from prosecution for overt violation of the law. The court reasoned that if the defendants were not prosecuted on religious grounds, then any decree of criminal act could be justified by religious motivation; whether an act is moral in context of the law cannot be determined by individual’s varying moral standards.

Case Summary

Five members a sect of The Church of Jesus Christ of Latter-Day Saints were accused and convicted of transporting one or more women across state boundaries to be married into polygamous relationships in violation of the Mann Act. On appeal, the petitioners argued that the Mann Act, which was directed at prostitution, debauchery, or other “immoral purpose,” did not cover polygamy. The petitioners also argued that because they were motivated by religious reasons, they lacked criminal intent

How was religion a factor?

The Supreme cout reaffirmed the Reynolds v. United States, 98 U.S. 145 (1879) verdict, continuing to condemn polygamy as contrary to western Christian values: “The organization of a community for the spread and practice of polygamy, is in a measure, a return to barbarism. It is contrary to the spirit of Christianity, and of the civilization which Christianity has produced in the western world.” The Supreme Court further found polygamy represented a “notorious example of promiscuity” and was “in the same genus as the other immoral practices” covered by the Mann Act, including prostitution and “the white slave business.” The decision thus plainly relies on western Christian values and beliefs to criminalize polygamous practices.

Additional resources

“Interstate Immorality: The Mann Act and the Supreme Court,” The Yale Lae Journal 46, no. 4 (1947) : 718-730

This article explores the Cleveland v. United States decision through the lens of Cominetti v. United States. The Cleveland decision expands the “immoral purpose” portion of the Mann Act by implying the government must prove “immoral purpose” as the primary motivating force for the transport of woman across state boundaries.

The Mann Act: Full Text 

Loving v. Virginia, 388 U.S. 1 (1967)

Decision date: June 12, 1967

Question presented

Does a ban on interracial marriage violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.


Yes, bans on interracial marriage violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Case summary

In June 1958, Virginia residents Mildred Jeter, a black woman, and Richard Loving, a white man, were married in Washington, D.C. Shortly after their marriage, the new couple returned to Caroline Country, Virginia. Upon their return, a grand jury indictment was issued, charging the Lovings with violation of Virginia’s ban on interracial marriage. The Lovings were convicted and sentenced to a year in prison, but the judge suspended the sentence on the condition that the Lovings leave Virginia for twenty-five years. The Lovings moved to Washington, D.C. and appealed their conviction. The Supreme Court overturned the conviction finding that Virginia’s ban on interracial marriage rested “solely upon distinctions drawn according to race,” and violated the Fourteenth Amendment Equal Protection Clause.

How was religion a factor? 

In the original Caroline County trial, the judge stated “Almighty God created the races, white black, yellow, malay, and red he placed them on separate continents.” The judge claimed that this separation proved God “did not intend for the races to mix.” However, despite blatantly sighting religion as a cause for the court’s decision a deeper look at the case and the history of interracial laws in the state of Virginia indicate that it was not compliance with God’s will but rather the white supremacist desire to maintain “racial integrity.” Religion was merely a mask for the racial and social implications that dictated the first court decision.

Additional resources:

Hoewe, Jennifer and Zeldes, Geri Alumit. “Overturning Anti-Miscegenation Laws: News Media Coverage of the Lovings’ Legal Case Against the State of Virginia,” SAGE journals 43, no. 4 (2011) : 427-433. 


This newspaper article explores the progression of interracial marriage laws in the state of Virginia, which date back to 1691. The original law, and all modifications until 1878, only punished the white spouse in the marriage. This distinction makes it clear, that while it was obscene for a white individual to marry a person of another race, the opposite was not as indecent. Thus, the law reinforced the inherent white privilege by implying marrying a person of another race was marrying down.

Andreasen, Kirstin. “Did Loving v. Virginia Need Its Slippery Slope?” Journal of Contemporary Legal Issues 14, (2003) : 89-96

This article argues that the verdict Loving v. Virginia is a “slippery slope” that can lead to the justification of incestuous and homosexual marriages on the now established grounds that the right to marriage is a civil right

Fay, Botham. “‘Almighty God created the races’: Theologies of marriage and race in anti-miscegenation cases, 1865-1967” ProQuest Dissertations and Theses. (2005). 

This dissertation explores the relationship between Catholicism and Protestantism and interracial marriage as well as the religious values that dictate the legal establishment of marriage.

Bob Jones University v. United States, 461 U.S. 574  (1983)

Decision date: May 24, 1983

Question presented 

Does the First Amendment protect racial discrimination motivated by religious beliefs in a public institution?


The First Amendment does not protect racial discrimination in a public setting, and thus it is not religious discrimination to withhold tax-exempt status from an institution that is not observing public policy regardless of the religious motivation for the violation.

Case Summary

The Internal Revenue Code of 1954 (IRC) allowed private schools to be tax exempt regardless of racial policies. However, in 1970, the Internal Revenue Service (IRS) determined it could no longer justify tax-exempt status to schools that enforced racially discriminatory admissions policies.

Bob Jones University prohibited admission of students who were involved in an interracial marriage or who supported interracial marriage or dating. Because of the discriminatory admissions practice, the IRS revoked the University’s tax-exempt status. The University sued in federal court. On appeal to the Supreme Court, the University argued that because it was a Christian institution, and believed that interracial marriage was prohibited by the Bible, removal of its tax-exempt status violated the University’s First Amendment Rights. The Supreme Court rejected the University’s argument, finding that not all restrictions on the practice of religion were banned, and there was a compelling state interest in ridding education of racial discrimination. Further, the Supreme Court determined that racially discriminatory educational institutions cannot be viewed as providing a public benefit within the “charitable” IRS tax exemption.

How was religion a factor? 

This case confirmed that where there is a compelling state interest, the government can pass laws that restrict religiously based conduct. The Supreme Court cited its decision in Reynolds v. United States, 98 U.S. 145 (1979) upholding laws banning polygamy as an example. The decision also highlights that just because religious beliefs may be held within certain groups of the western Christian religious community, those beliefs will not outweigh the larger governmental interest in equal protection of the laws. That said, it is noteworthy that this case follows more than a decade after the Supreme Court held bans on interracial marriage were unconstitutional in Loving v. Virginia , 388 U.S. 1 (1967). Thus, while the government interest in equal protection of the laws can overcome traditional western Christian values and beliefs, they do mean immediate acceptance.

Additional resources

Official Supreme Court Oral Argument 

Freed, Mayer G. and Polsby, Daniel D. “Race, Religion, and Public Policy: Bob Jones University v. United States,” The Supreme Court Review 1983, (1983) : 1-31. 

This article argues that although the court may have made the right decision in the Bob Jones case, they arrived at that verdict though unjust principles.

Stephen, Paul B. III. “Bob Jones University v. United States: Public Search of Tax Policy,” The Supreme Court Review 1983 (1983) : 33-82.

The Bob Jones decision was made based on taxation policy rather than the more complicated undelaying issues concerning the case. It also raises the question of which agencies are eligible to make decisions on policy—is it legally justified for the IRS to make policy judgments?

Roe v. Wade, 410 U.S. 113 (1973)

Decision Date: January 22, 1973

Question Presented 

Do states have the right to criminalize abortion unless it is necessary to save the woman’s life?


The woman’s right to privacy, which includes the right to terminate and unwanted pregnancy, is protected under the Due Process Clause of the Fourteenth Amendment, and therefore criminalizing abortion is a violation woman’s Constitutional rightsSummary 

Case Summary 

Roe, a single woman who was pregnant, filed a class action law suit in order to challenge the constitutionality against the Texas abortion laws, which criminalized abortion unless medically advised in order to save the mother’s life.

How was religion a factor? 

The Supreme court addressed the complexity and emotional sensitivity surrounding the issue of abortion. However, the court stated it was their duty to evaluate the situation based on the confines of the Constitution rather than a widely accepted societal moral code. As with the earlier Supreme Court decision in Loving v. Virginia, 388 U.S. 1 (1967), involving interracial marriage and the Fourteenth Amendment Equal Protection Clause, this decision marks a conflict between Constitutional protections and western Christian beliefs. The focus on the constitutionality of the laws in question, rather than historically accepted traditional Christian moral standards, reflects a shift towards value of the individual’s rights over religiously based moral standards that limited individual liberties. But this shift is not a smooth, continuous progression as demonstrated by the Supreme Court’s decision, more than a decade later, in Bowers v. Hardwick, 478 U.S. 186 (1986), upholding the constitutionality of laws banning sodomy even in the privacy of one’s own home.

Additional Resources 

Supreme Court: Brief of Texas Values as Amicus Curiae in Support of Respondents

On Writs of Certiorari to the United States Court of Appeals for the Sixth Circuit 

Platthrow, Lynn M., JD. “Roe v. Wade and the New Jane Crow: Reproductive Rights in the Age of Mass Incarceration,” American Journal of Public Health 103, no. 1 (2012) : 17-21

This article discusses the movement to ascertain legal “personhood” for fertilized eggs, embryos, and fetuses, and the influence this motion may have on overturning the Roe v. Wade decision.

Townsend, Tim. “Upcoming Religon Event Mark 40th Anniversary of Roe V. Wade,” McClathy-Tribune Business News (2013). 

This article discusses the 40th anniversary of the Roe v. Wade decision and the statistical support for abortion and the religious services held for those against abortion.

Bowers v. Hardwick, 478 U.S. 186 (1986)

Decision date: June 30, 1986

Question presented: Is criminalizing sodomy between two consenting participants in a private setting within the legal confines of the Fourteenth Amendment?

Conclusion: The Fourteenth Amendment does not protect consensual sodomy. Marriage, family and issues are under state jurisdiction and therefore regulation depends on state law and policy.

Case Summary 

Hardwick was charged with committing sodomy with another man in the privacy of his home, which was illegal in the state of Georgia. Hardwick brought suit in federal district court to challenge the constitutionality of the illegalization of consensual sodomy.

How was religion a factor?

Many sates have criminalized sodomy on the grounds that is deeply intertwined in the culture of the American culture and values. Although religion was not explicitly addressed in the case, it is aggressively implied through the argument of culture. As America is a nation with a deeply rooted Protestant Christian foundation, the inherent cultural morals are Protestant Christian. Thus, by allowing sodomy to be criminalized on the grounds that it is immoral by the overarching societal standard the court is playing into the religious belief that homosexuality is a sin.

Additional resources 

Self, Janet. “Bowers v. Hardwick: A Study of Aggression,” Human Rights Quarterly 10, (1987-1988) : 396-431

This article explores the negative affects the Hardwick decision has on the promotion of homophobia and the toxic discrimination it enforces.

Eskridge, William N. JR. “Hardwick and Historiography,” University of Illinois Law Review (1999) : 631-702.

This article follows a history of sodomy laws in the United states in order to prove that the court’s decision that sodomy is not protected in the Fourteenth Amendment inaccurately rooted in American culture.

Romer v. Evans, 517  U.S. 620 (1996)

Decision date: May 20, 1996

Question presented

Is limiting the rights of homosexual based on moral grounds individuals protected under the constitution?



The Equal Protection Clause of the Fourteenth Amendment protects homosexuals from being denied the same basic legal protections as their heterosexual counterparts.

Case Summary

Colorado added “Amendment 2”—an amendment that prevented homosexual orientation, conduct, and relationships from being protected under the law—to its state constitution. The Colorado Supreme Court held that Amendment 2 was placed under scrutiny because it appeared to violate the Equal Protection Clause of the Fourteenth Amendment by limiting the fundamental rights of citizens who identified as homosexuals.

How was religion a factor?

A mere decade after Bowers v. Hardwick stated criminalizing sodomy was legally permissible, the Romer verdict took a step towards protecting the rights of homosexual citizens. While the Bower decision was justified with the argument that the immorality of sodomy was deeply imbedded in American tradition, the Romer case seems to take a step away from that cultural justification. By protecting homosexual’s basic legal rights, the Supreme Court demonstrated a societal shift towards increased acceptance of homosexual behavior, and therefore a change in the Nation’s overarching religious morals. The shift demonstrated a somewhat more secular view of acceptance, as it prevented total discrimination against a population of people that has historically been discriminated against due to religious teachings.

Additional resources 

Celeste, Mary A. “Oyez, Oyez: An Inside Look at Romer v. Evans,” William Mitchell Law Review 41, (2015) : 44. 

 Judge Mary A. Celeste, the first openly LGBT judge in the Colorado and Rocky Mountain Region, discusses her involvement in the Romer v. Evans case.

Carpenter, Dale. “A Conservative Defense of Romer v. Evans,” Indiana Law Journal 76, (2001) : 403. 

This article counters many conservative’s attack on Romer case by outlining the decision from a conservative standpoint, and arguing that it was ultimately a conservative verdict.

Koppelman, Andrew. “Romer v. Evans and Invidious Intent,” William and Marry Bill of Rights Journal 6, (1997-1998) : 89.


Andrew Koppelman argues that this article was Romer v. Evans decision was grounded in the unconstitutional nature of the Colorado Amendment 2 while recognizing the complexity of the case.


Lawrence v. Texas, 539 U.S. 558 (2003)

Decision date: June 26, 2003

Question presented

The case revaluated the Bowers v. Hardwick, which stated it was within the confines of the constitution for states to criminalize consensual sodomy.


The court overturned the Bowers v. Hardwick decision.

Case Summary

Houston police entered Lawrence’s apartment in response to a weapons disturbance report. When they entered, they allegedly found Lawrence engaged in intercourse with another man. Lawrence and his partner were arrested and convicted for violating the Texas state statue that prohibited two individuals of the same gender to engage in sexual intercourse.

How was religion a factor?

The court claimed that sense romantic relations had become widely accepted between people of the same gender, the court could no longer justify illegalization homosexual intercourse based on universal moral standards. However, the court did not explicitly state that homosexual conduct was a basic right. So, while the decision showed an increase in societal acceptance, and an increased value in individual privacy it did not go so far as to justify homosexual conduct. Thus the case while the case moves in the direction of granting homosexual gay, lesbian, and bisexual couples equality in the eyes of the law, it does not directly protect homosexuality. The decisions vague wording indicates that the overall view on homosexuality is still a controversial issue largely founded on steadfast religious beliefs.

Additional Resources:

Mukoski, Kristian R. “The Constraint of Dignity: Lawrence v. Texas and Public Morality,” Notre Dame Law Review 89, (2013-2014) : 451.

This article explores the legal moralism used to justify the Lawrence v. Texas decision.

“Sexual Privacy After Lawrence v. Texas,” Georgetown Journal of gender and the Law 333 no. 12 (2011): 311-365

This article explores the laws prior to Lawrence v. Texas, possible readings of the case, and the two leading approaches lower courts have taken to settle claims dealing with Lawrence v. Texas.

Huffman, Blake M. “North Carolina Courts: Legislating Compulsory Heterosexuality by Creating New Crimes Under the Crime Against Nature Statute Post-Lawrence v. Texas,” Law & Sexuality: A Review of Lesbian, Gay, Bisexual and Transgender Legal Issues 30, (20011) : 1-30

This article explains North Carolina’s “crime against nature laws,” and how they are being used to prevent sodomy post Lawrence v. Texas.

United States v. Windsor, 570 U.S__(2013)

Decision Date: June 26, 2013

Question presented:

Is it Constitutional to discriminate against legally married, same-sex couples by defining marriage as a partnership between a man and a woman in Section 3 of the Defense of Marriage Act (DOMA)?


The discriminatory definition of marriage as a union between a man and a woman is in violation of the Due Process Clause of the Fifth Amendment.

Case Summary 

The state of New York recognized the marriage of state residents Edith Windsor and Thea Spyer who were married in Ontario, Canada. However, after Spyer’s death, Section 3 of the Defense of Marriage Act (DOMA) prohibited Windsor from claiming the federal tax-exemption for surviving spouses because the definition of “marriage” and “spouse” was constructed to exclude same-sex couples.

How was religion a factor? 

Marriage is a historically a religious union, which has become a societal standard, and consequently now provides many legal privileges for spouses. The decision to expand the definition of marriage to include same-sex couples clearly shows a shift away from marriage as an religious institution to marriage as a legal conjoining. The decision also further demonstrates the shift in importance from religious morals to individual freedoms seen in Romer v. Evans and Roe v. Wade.

Additional Resources 

Supreme Court Oral Argument-Audio 

Bower, Chris. “Juggling Rights and Utility: A Legal and Philosophical Framework for Analyzing Same-Sex Marriage in the Wake of United States v. Windsor,” California Law Review 102, (2014) : 971-111

Justice Anthony M. Kennedy used due process and equal protection to analyze and justify the United States v. Windsor decision rather than the traditional tiers-of-scrutiny in order to capture establish the humanitarian significance of the case. However, the less structured argument lacks the clarity to effectively guide future court cases. This article aims to establish a theoretical structure that outlines why the bans on same-sex marriage are unconstitutional.

Woodham, Matthew. “Constitutional Law–Equal Protection–DOMA’s Refusal to Recognize State-Sanctioned Same-Sex Marriages for the Purpose of Federal Law Deemed Unconstitutional,” Cumberland Law Review 44, (2013-2014) : 169.

This article explores the United States v. Windsor trail process.

Hollingsworth v. Perry, 570 U.S.__(2013)

Decision date: June 26, 2013

Question presented

Is California’s Proposition 8, which limited marriage to opposite sex couples, a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment?


Because the appeal was not brought by the State of California, but by individuals who supported Proposition 8, the Supreme Court found it lacked jurisdiction to hear the case. Accordingly, the Supreme Court never reached the underlying question whether Proposition 8 violated the Due Process and Equal Protection Clauses.

Case Summary

California voters passed Proposition 8, an amendment to the California state constitution that defined marriage as a union between a man and a woman. Same-sex couples who wanted to be married filed suit in federal court, challenging the constitutionality of Proposition 8. The California state officials named in the case refused to defend Proposition 8, so the District court allowed individual citizens who supported Proposition 8 to defend it. After a bench trial, the District Court held that Proposition 8 was unconstitutional. Petitioners appealed to the Ninth Circuit, which affirmed the District Court decision. Petitioners then appealed to the Supreme Court. The State of California did not join in the appeals. The Supreme Court never reached the underlying question regarding whether Proposition 8 violated the Fourteenth Amendment. Instead, the Supreme Court dismissed the case on technical, legal grounds finding that the petitioners – who were merely concerned citizens that could not act on behalf of the State of California – lacked standing to pursue the appeal.

How was religion a factor? 

This case reflects the shifting views and continuing struggle between individual rights and the role of western Christian religious morals. First, while California had recognized same-sex marriages, the vote to approve Proposition 8 demonstrates that, at the time it was passed, a majority of California voters still wished to restrict the rights of same-sex couples to marry. The refusal of California state officials to defend Proposition 8 highlights the continuing evolution of societal attitudes and the waning influence of fundamentalist western Christian morals. While the Supreme Court could have finally decided the underlying issue, it side-stepped the central question to dismiss the case on a legal technicality. By doing so, the conservative leaning Supreme Court was again able to avoid the necessity to either affirm the right to same-sex marriage or reject that right (just as it had avoided this issue in United States v. Windsor, 570 U.S. ___ (2013).

Additional Resources 

Supreme Court Oral Augment-Audio 

Burwell, Secretary of Health and Human Services v. Hobby Lobby Stores, Inc., 573 U.S.__(2014)

Decision date: June 30, 2014

Question presented 

Can religiously affiliated companies deny employees insurance coverage for contraceptives that violate the company’s religious beliefs.


The Religious Freedom Restoration Act (RFRA) allows companies to deny their employees coverage of contraceptives employees are otherwise entitled to under the Affordable Care Act (ACA).

Case Summary 

The Health and Human Services (HHS) sought to mandate companies that had strong religious affiliation such as Hobby Lobby and Mardel to provide coverage for four “objectionable contraceptives” patients were entitled to by the ACA even thought he contraceptives went against their companies religious morals.

How was religion a factor?

Companies were allowed to deny employees coverage of contraceptives on religious grounds. The court likely would not have allowed companies to deny their employees other medical coverage citizens are entitled to under the ACA; in the predominantly Christian Protestant culture, sex is often viewed as taboo somewhat immoral practice rather than as a part of human life. By allowing companies to essentially have control over their employees intimate relations, the Supreme Court insinuates sexual freedom is lesser to religious freedom. The decision demonstrated religious freedom is a constitutionally protected right, but the right to affordable protection is not.

Additional resources 

Supreme Court QPReport 

Supreme Court Sibelius (12/26/2012)

Supreme Court Argument Transcriptions 

Bourke v. Beshear 

Decision date: Oral Argument heard April, 28 2015

Question presented

Does the Fourteenth Amendment require states to recognize marriage between same-sex couples?


Oral argument was heard on April 28, 2015. A decision is expected by the end of June 2015.

Case Summary 

The Commonwealth of Kentucky’s constitution prohibits marriage of same-sex couples, recognition of same-sex marriages, and alternative categorization that would provide marriage benefits to same-sex couples. The Bourke Petitioners are four couples “legally married in other jurisdictions,” but the state of Kentucky does not recognize their marriage. The couples filed suit, claiming the Kentucky law was a violation of the First Amendment, the Full Faith and Credit Clause, the Supremacy Clause and Section two of the federal Defense of Marriage Act.

How was religion a factor? 

While the Bowers v. Hardwick, 478 U.S. 186 (1986), decision allowing the illegalization of sodomy has been overturned, and the Supreme Court has issued several recent decisions favorable to same-sex couples – including United States v. Windsor, 570 U.S. ___ (2013), and Hollingsworth v. Perry, 570 U.S. ___(2013) – the Supreme Court has avoided establishing marriage as a fundamental right that must be extended to same-sex couples due to the political controversy that stems from religious foundation. By hearing the Bourke case, the Supreme Court seems to finally be forced to come forward with a clear decision on the constitutionality of same-sex marriage.

Additional resources

“Supreme Cout Hears Same-Sex Marriage Arguments,” The New York Times.