The Food and Drug Administration (FDA) prohibits sexually active gay men from donating blood. This Article 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 Article considers why mainstream gay rights organizations may nonetheless shy away from bringing it.