12 July 2018


'The Case of the Religious Gay Blood Donor' by Brian Soucek in William and Mary Law Review (Forthcoming) comments
The Food and Drug Administration prohibits sexually active gay men from donating blood. This essay envisions an original legal challenge to that rule: not the predictable equal protection suit, but a religious freedom claim brought by a gay man who wants to give blood as an act of charity. Because the FDA’s regulations substantially burden his exercise of religion—requiring a year of celibacy as its price—the FDA would be forced to show that its policy is the least restrictive means of preventing HIV transmission through the blood supply. Developments in testing technology and the experience of other countries suggest that this would be hard to prove. 
A lawsuit like this would either produce a major victory for gay rights or, as likely, would force courts to clarify and curtail some of the most controversial aspects of recent, mostly conservative, religious freedom efforts: their expansive view of religious burdens and their willingness to impose costs on the government or other third parties. In other words, by appropriating legal arguments from the right, a lawsuit like this presents a win-win proposition for progressive litigators. This essay considers why mainstream gay rights organizations may nonetheless shy away from bringing it.
Soucek's challenging article begins
Sexually active gay men cannot donate blood under current federal law. But federal law also prohibits the government from substantially burdening someone’s religious practice unless it is the least restrictive way of advancing a compelling governmental interest. 
So what happens if a gay man wants to donate blood as an act of charity—a religious practice encouraged by his church? 
This Essay imagines the lawsuit that might allow him to do so. The suit could go either of two ways. Given the generous understanding of religious liberty law in recent Supreme Court opinions, the case might be an easy win. Requiring celibacy as the price of living one’s faith surely counts as a burden that is substantial; and public health, while clearly a compelling governmental interest, does not necessitate such draconian means, as the experience of other countries, the testimony of medical experts, and advances in HIV testing all make clear. A win for the plaintiff would be a major gay rights victory, undermining an enduring and stigmatizing policy remnant of the AIDS crisis.
On the other hand, the government might claim that giving blood isn’t really a form of religious exercise, or that even if it is, it is a religious calling that can be answered in alternate ways. A gay man who wants to be charitable can donate money or time or soup—not blood. The government might also claim that expanding the pool of blood donors would either increase costs, if it is to be done safely, or else it would marginally increase the rate of HIV transmission through the blood supply—thereby imposing burdens on third parties like hemophiliacs and others who depend on transfusions of blood. 
This is all to say that the religious gay plaintiff could lose. But his loss would likely require courts to clarify—and curtail—some of the most controversial aspects of recent, mostly conservative, religious freedom efforts: the expansive and deferential notion of “substantial burden” at play in cases like Hobby Lobby,  and the disregard for governmental and thirdparty costs seen in recent actions by the Department of Justice, the Department of Health and Human Services, and those across the country seeking exemptions to antidiscrimination laws that protect gays and lesbians. In short, the case is a coin toss: heads, gay rights advocates win; tails, religious conservatives lose.
It needs to be asked, then, why gay rights advocates are not clamoring to bring such a case. Perhaps they just haven’t thought of it; after all, it has never been proposed in academic literature. But Part IV of this Essay suggests that deeper considerations may be at play: worries about the way this litigation could provoke anti-gay backlash and reinforce stereotypes, even as it promises to disrupt the stereotypical opposition between religion and gay rights.
Before getting there, Part III, the heart of the Essay, shows how this hypothesized challenge brings together in a single case all of the deepest unanswered questions in recent religious liberty law—from the nature of religious burdens and the fungibility of religious practice, to the costs of granting exemptions and the ways those costs can be disbursed without violating the constitution. Part III looks at how a religious gay blood donor could win either by actually winning his case, or by a loss that manages to curb recent advances in religious freedom law that are currently threatening LGBT and women’s rights.
Prior to that, Part II shows how a religious freedom challenge to the gay blood donation ban differs from the more predictable equal protection challenge that others have discussed10—and how the former may be a stronger claim. Part I begins by explaining the ban that is at issue in everything that follows.