By Ray Sanchez
It’s the season of so-called religious freedom bills: statewide proposals that, depending on the point of view, ensure that individuals and businesses may operate in keeping with their faith or fling the door open to discrimination in the name of religion.
In Mississippi, Gov. Phil Bryant signed a bill this week that protects businesses and religious groups from punishment if they deny services such as counseling, wedding planning and adoption support to lesbian, gay, bisexual and transgender people when it’s based on “sincerely held religious beliefs or convictions.”
Watchdog groups decry the bill as discriminatory. Proponents call it a protection of First Amendment rights.
In Georgia last month, HB 757 gave faith-based organizations the option to deny services to gays and lesbians. Opponents immediately labeled it “anti-LGBT.”
Republican Gov. Nathan Deal cited Jesus’ ministry to outcasts in signaling his intention to veto the bill. Late last month, he did.
How did LGBT rights and religious freedom end up on a collision course?
Supreme Court allows same-sex marriage
On a summer day last year, a divided U.S. Supreme Court released a landmark opinion giving same-sex couples the right to marry nationwide, establishing a new civil right and handing gay rights advocates a historic victory.
Justice Anthony Kennedy voted along with the court’s four liberal justices and wrote the majority opinion in Obergefell v. Hodges. Each of the four conservative justices in the minority wrote his own dissent.
On June 26, nearly 46 years to the day after a riot at New York’s Stonewall Inn ushered in the modern gay rights movement, the high court decision sought to settle one of the major civil rights fights of this era. Kennedy’s opinion spoke of family, love, and liberty.
“Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Kennedy said. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
In his dissent, the late Justice Antonin Scalia blasted the decision’s “threat to American democracy.”
The Obergefell ruling energized a growing movement to expand the coverage of laws prohibiting discrimination based on sexual orientation or gender identity, according to Ira Lupu, a constitutional law expert at George Washington University School of Law. But it also invigorated religious resistance against that movement.
“Rise of LGBT rights in general, and especially the court’s same-sex marriage decision, are the only explanation for their resurgence in political salience,” he said, referring to religious freedom laws.
Religious institutions encounter real difficulties
Religious freedom bills have actually been growing since the U.S. Religious Freedom Restoration Act became law in 1993, which was designed to prohibit the federal government from “substantially burdening” a person’s exercise of religion.
The law passed with the backing of a broad-based coalition, but it wasn’t set against the more recent backdrop of gay rights or the wave of marriage equality laws and court rulings that culminated in the Obergefell decision.
Tim Holbrook, a professor of law at Emory University School of Law, wrote in a CNN opinion piece last month that same-sex marriages have created difficulties for religious institutions.
“As Chief Justice John Roberts asked: Will religious institutions that provide married student housing be forced to allow same-sex married couples into such housing, even if their faith finds same-sex relationships to conflict with their beliefs?” wrote Holbrook, an LGBT commentator.
“Can a religious employer refuse to hire, or even fire, someone who is in a same-sex marriage? These interstitial areas will have to be addressed.”
Douglas Laycock, a constitutional scholar at the University of Virginia Law School who helped win passage of Religious Freedom Restoration Act, said state RFRAs have been underenforced.
“But they have done some good in cases that do not involve culture war issues and that the press has mostly not covered,” he said.
Some examples: cases involving Orthodox Jewish prisoners wanting kosher meals and churches barred from feeding the homeless.
Laycock added, “We tell our children we provide liberty and justice ‘for all.’ What we need to implement that promise are strong gay-rights laws, with strong religious exemptions for religious organizations and for individuals and very small businesses in religious contexts.”
Clash manifests in real life
Real-world examples added fuel to the debate.
In September, a county clerk in Kentucky spent six days in jail for refusing to issue marriage licenses to same-sex couples.
Rowan County clerk Kim Davis refused to give licenses to same-sex couples despite the Supreme Court’s decision in June that legalized same-sex marriage across the country. She claimed that doing so would violate her Christian convictions against same-sex marriage.
U.S. courts consistently ruled against Davis, but she become an icon to those championing religious exemption.
In August, an appellate court ruled against a Colorado bakery owner who refused to make a wedding cake for a same-sex couple. The court rejected the owner’s assertion that the refusal was based on religious opposition to same-sex marriage, not because of the couple’s sexual orientation.
In July, the U.S. Supreme Court’s 5-4 ruling in Burwell v. Hobby Lobby allowed some family-owned or other closely held businesses to opt out of a federal requirement to pay for contraceptives in health coverage for their workers.
Owners of Hobby Lobby and another company argued the mandate in President Barack Obama’s health care reforms forced them to violate deeply held religious principles because they believe the specific contraceptives they objected to amount to abortion. The high court agreed.
“There is no political support for respecting the liberty of both sides,” Laycock said.
“The Republicans don’t want gay-rights laws. … And the Democrats don’t want religious exemptions. The earlier generation of gay-rights laws all have exemptions for churches and religious nonprofits, but it appears that gay-rights groups are no longer willing to agree to such exemptions.”
States respond to local LGBT protections
In November, Houston voters rejected the Houston Equal Rights Ordinance, a 2014 measure intended for protecting LGBT rights.
The ballot issue drew national attention, with conservative opponents claiming the law would allow troubled men to go into women’s restrooms and locker rooms.
The campaign to undo HERO became a focal point for the right, which spent millions and recruited an assortment of local celebrities to their cause, including former Houston Astros star outfielder Lance Berkman.
Critics say the Houston referendum and an accompanying wave of so-called bathroom bills discriminate against transgender people. Corporations voiced their opposition and even threatened to use their economic muscle to block them.
Last month, North Carolina Gov. Pat McCrory signed into law a measure that blocked cities from allowing transgender people to use public bathrooms designated for the sex as which they identify. House Bill 2 (the Public Facilities Privacy & Security Act) was passed on the heels of a Charlotte city ordinance allowing transgender people to use the bathrooms of their choice.
The law reserves to the state the right to pass nondiscrimination legislation, saying state laws supersede local ordinances.
In response, PayPal announced that it had canceled plans to open a new global operations center in Charlotte, costing the state’s largest city 400 jobs.
States proceed despite backlash
The cycle of action and reaction has become familiar, if not entirely predictable: Social conservatives lament instances where business owners find themselves in hot water for controversial statements or actions; targeted measures are enacted; social liberals denounce the measures; business interests become involved.
A year ago, Indiana’s social conservatives passed a law protecting Christian businesses that did not want to provide services to gays and lesbians — particularly for same-sex weddings. But a week later — driven by businesses’ concerns over discrimination — the law was amended to the extent that the state ended up enacting protections based on sexual orientation for the first time in its history.
In the midst of this, the owners of Memories Pizza in the Walkerton, Indiana, told local media that they would refuse to cater a same-sex couple’s wedding. The comments went viral. There were petitions and calls for boycotts and travel bans. On the other side, supporters donated more than $842,000 to a GoFundMe account set up to help the business stay afloat.
Since 1993, 21 states have enacted religious freedom laws and amendments modeled after the RFRA, according to the National Conference of State Legislatures. Ten other states are considering similar legislation, according to the conference.
Laycock said 11 states have interpreted their constitutions to include RFRA-like protection.
“I suspect the legislators who support these laws are just currying favor with the religious right wing,” said Lupu, the GWU constitutional law expert. “They’ll get political credit for the support, and any governor who vetoes will get the blame from the religious right.”
Laycock called the threat of boycotts “ill-informed and deeply intolerant of religious minorities.”
“But they are real, and they have intimidated some governors and some legislatures,” he said.
“In places where these bills have passed … I think we have to assume [there are] deep-red Republicans who don’t care what anyone else thinks, or who even delight in flouting elite opinion.”