INTRODUCTION
The Constitution safeguards numerous rights, but occasionally the rights conflict with each other in the process of challenging the very pillars of democracy. No conflicts demonstrate this conflicting tension as vividly as is the case with the conflict between freedom of religion and LGBTQ+ rights. The two are both deeply personal, identity-affirming rights: the former based on conscience and faith, the latter on dignity, equality, and self-determination. But when the two intersect, courts are frequently called upon to determine which right should yield.
India’s Article 25 provides freedom to profess, practice, and propagate religion subject to public order, morality, and health.[1] Simultaneously, the Supreme Court has been acknowledging LGBTQ+ rights under Articles 14, 15, and 21, highlighting equality, non-discrimination, and the right to live with dignity. In Navtej Singh Johar v Union of India, sexual relations between consenting adults of the same sex were decriminalised, and the Court reiterated that sexual orientation is a necessary aspect of privacy and identity.[2] As in NALSA v Union of India, where the Court acknowledged the right to self-identify of transgender persons, inclusivity is a constitutional imperative.[3]
Freedom of religion has also been staunchly defended, however. The “essential religious practices” doctrine, developed in the Shirur Mutt case, protects practices that are considered central to a religion.[4] At times, this doctrine has been used to resist changes sought by claims of equality. Internationally, it has occurred similarly—for example, in the U.S. Supreme Court, in Masterpiece Cakeshop v Colorado Civil Rights Commission considered a baker who declined to create a wedding cake for a gay couple on grounds of religion, and the question was whether conscience can be used to deny services.[5]
FREEDOM OF RELIGION IN CONSTITUTIONAL LAW
Freedom of religion is a place of honour in constitutional democracies as it protects both individual conscience and group identity. In India, Constitutional Articles 25 to 28 guarantee the right to freedom of religion, such as freedom to profess, practice, and propagate religion.[6] This provision, however, is not unqualified; Article 25 qualifies it in terms of considerations of public order, morality, and health, and also provides for the necessity of harmonising religious rights with other basic rights.
Judicial interpretation has been the determining force behind delimiting this right. In the *Shirur Mutt* case, the Supreme Court came up with the “essential religious practices” doctrine, where it decided that only those religious practices which are essential to a religion are given constitutional protection.[7] While this was done to avoid undue judicial intrusion, it has also resulted in courts determining which practices can be called “essential,” so that the line between religion and law becomes contentious.
The Court has also explained that religious freedom cannot be used for acts that are contrary to constitutional values. In *Indian Young Lawyers Association v State of Kerala* (the Sabarimala case), it ruled that exclusion of women from temple entry could not be protected under religious freedom if it offended equality and dignity.[8] These trends point out that freedom of religion, while central, has to function within the overall matrix of constitutional morality.
LGBTQ+ RIGHTS AS CONSTITUTIONAL GUARANTEES
The acceptability of LGBTQ+ rights in India has arisen out of a liberal reinterpretation of equality, dignity, and privacy under the Constitution. Article 14 ensures equality before the law, Article 15 ensures non-discrimination based on sex, and Article 21 ensures protection of life and personal liberty, which the Supreme Court has interpreted to encompass autonomy, privacy, and dignity.[9] These provisions have been the basis for upholding the rights of sexual and gender minorities.
The watershed moment arrived in Naz Foundation v Government of NCT of Delhi, where Section 377 of the Indian Penal Code was read down by the Delhi High Court on the basis that criminalising consensual same-sex relations contravened Articles 14, 15 and 21.[10] While this ruling was reversed in Suresh Kumar Koushal v Naz Foundation,[11] the Supreme Court in Navtej Singh Johar v Union of India reaffirmed and broadened the reasoning, upholding that sexual orientation is a fundamental characteristic of identity and dignity.[12]
Additionally, in NALSA v Union of India, the Court acknowledged transgender persons’ rights, underscoring that gender self-identification is part of the right to live with dignity.[13] Collectively, these judgments signify a shift from a moral lens to see LGBTQ+ identity and instead towards one of constitutional rights, placing India in tune with international human rights advancements like the U.S. ruling in Obergefell v Hodges, legalising same-sex marriage.[14]
ARGUMENTS SUPPORTING FREEDOM OF RELIGION
Advocates of religious freedom maintain that it is among the oldest and most ingrained rights in constitutional law. It safeguards not only personal belief but also cultural and communal practices that imbue people’s lives with significance. In India, Article 25 enshrines freedom to profess and practice religion, acknowledging that for many citizens, religion is an essential part of personal identity.[15] To curtail this right would thus risk compromising the pluralism for which the Constitution was drafted.
It is also contended that requiring individuals or institutions to act against their religious conscience is to violate autonomy. For instance, according to the U.S. Supreme Court in Masterpiece Cakeshop v Colorado Civil Rights Commission was the question of whether a baker may refuse to create a wedding cake for a same-sex couple based on religious reasons.[16] While the Court’s ruling was formulated narrowly, it recognised the constitutional significance of safeguarding genuine beliefs from state compulsion.
In the Indian context, the doctrine of essential religious practices evolved in the Shirur Mutt case constitutes a safeguard for practices considered integral to a religion.[17] Religious freedom is not ensured by weak protection of it; without strong protection, minorities in general might see their traditions displaced by majoritarian considerations. In this view, the protection of religion is crucial in order to promote diversity in a secular democracy.
ARGUMENTS SUPPORTING LGBTQ+ RIGHTS
The rebuttal emphasises that freedom of religion, as basic as it is, cannot be a permit to discriminate. The Supreme Court in the case of Navtej Singh Johar v Union of India clearly established that equality and dignity form the essence of constitutional morality, and no tradition or belief can overrule these promises.[18] Permitting religion to provide the basis for exclusion would practically reduce LGBTQ+ individuals to second-class citizenship, violating Articles 14, 15, and 21.[19]
LGBTQ+ rights are not presented as lifestyle options but as part of one’s inherent identity. In NALSA v Union of India, the Court reiterated that self-identification of gender is an essential right of personal liberty.[20] Likewise, international law, e.g., Obergefell v Hodges in America, has held that prohibiting same-sex couples from marrying disrespects their dignity and equality.[21]
From this vantage point, religion is to function within constitutional morality. As much as practices of untouchability were ended despite religious authorisation, the discriminatory treatment of LGBTQ+ individuals cannot be justified in terms of faith. Securing LGBTQ+ rights guarantees not only personal liberty but also the larger objective of establishing an inclusive and egalitarian democracy.
THE BALANCING ACT
The tension between freedom of religion and LGBTQ+ rights provides a good example of the dilemma of balancing between antagonistic fundamental rights in a constitutional democracy. Indian and foreign courts alike have largely avoided presenting the problem as one of sheer priority, opting instead to use proportionality and constitutional morality to balance the competing claims.
In India, the Supreme Court has reaffirmed time and again that religious freedom under Article 25 is essential, but it cannot prevail over other basic rights. In the Indian Young Lawyers Association v State of Kerala (Sabarimala case), the Court re-emphasised that practices of religion must give way where they impinge upon equality and dignity.[22] Likewise, in Navtej Singh Johar v Union of India, the Court appealed to constitutional morality in holding that religious or social disapproval may not be used to limit fundamental rights.[23]
Comparative jurisprudence also follows the same pattern. National Coalition for Gay and Lesbian Equality v Minister of Justice, the Constitutional Court of South Africa invalidated sodomy laws and reiterated that equality should triumph even in the face of cultural or religious objections.[24] These rulings demonstrate a pervasive judicial philosophy: rights have to exist together, but where conflict is irreconcilable, the values of dignity and equality are accorded more importance.
CONCLUSION
The conflict between religious freedom and LGBTQ+ rights is not one of diluting one right to elevate the other, but reconciling both in terms of the constitutional scheme. Religion forms an aspect of individual and group identity, and its protection is essential for pluralism. However, when religious practices cross into the space of equality and dignity, courts have repeatedly held that constitutional morality shall prevail.[25]
This is the spirit of a larger truth: rights are not fixed but relational. Freedom of religion is no excuse to use as a cover for discrimination, nor can LGBTQ+ rights require erasing a real belief. The test for courts and society is how to balance both rights, with dignity and equality drawing the final line. Otherwise, freedom itself becomes meaningless in a democracy that depends on being inclusive.[26]
Author’s Name: Ranu Bhardwaj (Maharaja Agrasen Institute of Management Studies, Delhi)
[1] Constitution of India 1950, art 25
[2] Navtej Singh Johar v Union of India [2018] 10 SCC 1 (SC)
[3] National Legal Services Authority v Union of India (2014) 5 SCC 438
[4] Commissioner, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Shirur Mutt AIR [1954] SCR 1005
[5] Masterpiece Cakeshop v Colorado Civil Rights Commission 584 US ___ (2018)
[6] Constitution of India 1950, arts 25–28
[7] Commissioner, Hindu Religious Endowments, madras v Sri Lakshmindra Thirtha Swamiar of Shirur Mutt [1954] SCR 1005
[8] Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1
[9] Constitution of India 1950, arts 14, 15, 21
[10] Naz Foundation v Government of NCT of Delhi (2009) 160 DLT 277 (Del HC)
[11] Suresh Kumar Koushal v Naz Foundation (2014) 1 SCC 1
[12] Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC)
[13] National Legal Services Authority v Union of India (2014) 5 SCC 438
[14] Obergefell v Hodges 576 US 644 (2015)
[15] Constitution of India 1950, art 25
[16] Masterpiece Cakeshop v Colorado Civil Rights Commission 584 US ___ (2018)
[17] Commissioner, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Shirur Mutt [1954] SCR 1005
[18] Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC)
[19] Constitution of India 1950, arts 14, 15, 21
[20] National Legal Services Authority v Union of India (2014) 5 SCC 438
[21] Obergefell v Hodges 576 US 644 (2015)
[22] Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1
[23] Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC)
[24] National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) (South Africa)
[25] Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC)
[26] Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1
