70 Am. U. L. Rev. 1 (2020).
* Sheller Professor of Public Interest Law and Director of Law and Public Policy Programs, Temple University, Beasley School of Law. I would like to acknowledge special thanks to Lily Bernadel, a 2020 Temple Law & Public Policy Scholar, for her excellent research support and assistance.
LGBTQ people in the United States live with an Equality Gap that seems to grow wider with each legislative session. The majority of states do not have non-discrimination protections in place for LGBTQ people. In the absence of blanket federal non-discrimination protections, a same-sex couple can be denied service by bakers, catering halls, and photographers while trying to exercise their constitutionally protected right to marry. A transgender person can be denied access to a public bathroom that matches their gender identity. A federally funded adoption agency can refuse to work with LGBTQ persons who wish to adopt. In addition, many states have enacted explicitly anti-LGBTQ measures and prohibitions that exacerbate the Equality Gap and further underscore regional disparities. Even states with non-discrimination protections for LGBTQ people have considered expanding religious exemptions in a way that could greatly undercut the effectiveness and scope of existing non-discrimination protections. As a result of this mismatch of laws, the lived experience of LGBTQ people varies wildly depending on where they reside. For example, LGBTQ people living in New York enjoy many more protections and suffer none of the disabilities that are imposed on LGBTQ people living in Mississippi. The regional disparities are so extreme that some countries have issued travel advisories for their citizens visiting certain parts of the United States.
This article examines the role federalism has played in the trajectory of LGBTQ rights and the creation of the Equality Gap. The first Section of this Article explores federalism as an institutional choice that strikes a balance between state and national power. The second Section reviews the instrumental use of federalism by LGBTQ advocates to advance the legal strategy that ultimately led to nationwide marriage equality. It also provides an overview of corresponding and complementary visions of federalism expressed in both Windsor and Obergefell. The last Section reviews the current Equality Gap and the most recent anti-LGBTQ initiatives that are being considered on the state and local levels in light of Bostock v. Clayton County, the 2020 US Supreme Court case that extended Title VII non-discrimination protections to sexual orientation and gender identity. A brief Conclusion closes with the observation that federalism has proven to be a pragmatic, but also imperfect, institutional choice for LGBTQ rights advocates because state-level civil rights protections are, by their nature, partial, not portable, and especially vulnerable to majoritarian bias. This observation has particular salience for both our understanding of federalism and the future of LGBTQ advocacy.