"Religious Freedom" Bills Are the Newest Front in the War on LGBT Americans
This June, advocates for civil marriage equality will likely celebrate their greatest, and final, victory. The Supreme Court will hand down decisions regarding four cases that may finally settle the issue of whether same-sex couples have a constitutional right to marry in the United States.
Organizations dedicated to universal marriage equality are already planning a victory lap. "Assuming we do win the long-sought, hard-fought victory in June, Freedom to Marry ... will have achieved its mission," Evan Wolfson, founder and president of Freedom to Marry, told the Huffington Post in a recent interview. "And we will end the campaign. We will close down."
It's a well-earned respite after a well-fought battle. Freedom to Marry, an organization founded in 2003 with the goal of securing the right to marry for same-sex couples at the state and federal level, has perhaps done more work in support of civil marriage on the grassroots level than any other group in the country. "We are all ready to be done," a Freedom to Marry staffer told Mic.
Organizations dedicated to the larger mission of civil rights for LGBT Americans, however, may want to hold off on uncorking the Champagne. The fight for marriage equality may have moved from humiliating losses to an optimistic final stand at the Supreme Court, but the myopic focus on marriage rights has neglected the numerous legal barriers LGBT people around the country still face. Be it the freedom to access goods and services without being denied for their minority status or the freedom to work without fear of unfair termination, LGBT Americans seem destined to be fighting for basic legal protections long after the battle for civil marriage has been won.
Sore losers: Following the avalanche of federal court decisions that overturned state bans on same-sex marriage from coast to coast, those who lost the marriage equality battle have attempted to prolong the lifespans of their irrational biases through anti-LGBT discrimination in accommodations and services. Businesses ranging from florists to bakeries to B&Bs turned away LGBT customers, claiming that providing goods and services to same-sex couples is a violation of their Christian faith. Ensuing lawsuits against the businesses in question have affirmed that LGBT Americans can't be denied services simply because they're gay.
The most popular tools used by those upset by this common-sense litigation have been "religious freedom acts," 22 of which have been introduced in state legislatures around the United States this year. A clever bit of legislative fagbashing, the bills are largely based on the Religious Freedom Restoration Act, passed by Congress in 1993. Neutered by a Supreme Court decision in 1997, the Religious Freedom Restoration Act has no power over state governments. These local versions, however, have the full ability to force state governments to have a "compelling interest" before they can "substantially burden" personal religious practices.
They don't sound that bad — after all, who wants to be burdened? But while the bills may not be as conspicuously motivated in bigotry as, say, California's Sodomite Suppression Act of 2015, the innocuous name of the bills belies their pernicious nature. In practice, these religious freedom bills would allow anyone who disagrees with anti-discrimination legislation to ignore the law. The validity of hard-fought laws protecting LGBT Americans would be left up to the caprices of what Joe the Florist "counts" as discrimination.
As written, the bills are troublingly vague in their scope and intent — a likely intentional move that anti-LGBT legislators have made before. As a result, the repercussions of these ill-defined bills go beyond gay couples being turned down at bakeries or stationary stores. An anesthesiologist could refuse to prepare a woman for an abortion on religious grounds, a scenario specifically brought up by one of the bill's supporters; a general practitioner could decline to prescribe birth control to female patients; a pharmacist could refuse to fulfill that same prescription.
Ground Zero: Indiana. In a landslide 63-31 vote on Monday, the Indiana House of Representatives passed the innocently named Senate Bill 101, which "prohibits a governmental entity from substantially burdening a person's exercise of religion." The bill also prohibits an "applicant, employee or former employee from pursuing certain causes of action against a private employer." The bill had passed the Indiana Senate in February, and was signed by Governor Mike Pence in a private ceremony on Thursday morning.
SB 101 — which defines a "person" to include businesses, religious institutions and associations — is an attempt to codify and protect anti-LGBT discrimination in the state of Indiana, giving legal cover for businesses that don't want to serve gay customers or employ gay workers. "Today I signed the Religious Freedom Restoration Act, because I support the freedom of religion for every Hoosier of every faith," Pence said in a written statement. "The Constitution of the United States and the Indiana Constitution both provide strong recognition of the freedom of religion but today, many people of faith feel their religious liberty is under attack by government action."
Senators Dennis Kruse and Scott Schneider, SB 101's authors, did not return multiple requests for comment from Mic, but statements they have made to other outlets attempt to minimize the discriminatory nature of the bill. "It's unfortunate that folks are making decisions based on some of the public comments that are out there that I think are factually incorrect," Schneider told a local CBS affiliate. "Business owners are afraid to be out front on this. There's no upside for them to [discriminate]."
Some of SB 101's most vocal supporters, however, didn't get the memo about veiling the bill's intentions. "God's word tells us to do all things unto the Lord," Rep. Bruce Borders said on the floor of the House before the bill's passage. "If we truly are doing things unto the Lord, our business can be ... a church or sanctuary. People deserve protection in their businesses as well, not just on Sunday morning."
This view was largely confirmed by a letter drafted by 30 law professors and sent to the Indiana Senate, which called SB 101 "a solution in search of a problem ... [which] if passed will create confusion, conflict and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana."
The kicker? The bill isn't even necessary. Indiana's statewide non-discrimination law doesn't protect employees from being discriminated against based on either sexual orientation or gender identity. In fact, 18 of the 22 states that currently propose RFRA legislation don't have any legal protections against anti-LGBT discrimination. It's unclear what the point is of legalizing discrimination that's already legal, other than to add literal insult to injury.
Congress could have ended the debate over whether sharing a bathroom sink with a person of the same sex counts as a fireable offense 41 years ago, when a bill to ban employment discrimination on the basis of sex, marital status and sexual orientation was first introduced in Congress. Despite iterations of the same bill, now known as the Employment Non-Discrimination Act (ENDA), being introduced in almost every Congress since 1994, such a bill has never been passed. Not that most of America has noticed: 69% of Americans already think it's illegal to fire someone for their sexual orientation.
LGBT organizations need to look beyond marriage. Affirming the right of same-sex couples to marry has given those couples access to 1,138 federal rights previously unavailable to them, but some of the most basic rights are still denied: the right to adopt a child; the right to not be fired for their sexual orientation; the right to goods and services available to every other American.
Bills like Indiana's SB 101, or Georgia's "Georgia Religious Freedom Restoration Act," or Michigan's, or North Carolina's, or any of the other nearly two dozen bills are designed to further marginalize or diminish the dignity of LGBT Americans. Armed with the decade of experience in building grassroots support for LGBT rights in the most unlikely places, organizations that have put all of their eggs in the marriage equality basket are uniquely equipped to combat discriminatory legislation. As it stands now, the job of fighting these bills has been left up to local gay weeklies and video game conventions. It's a battle the LGBT community can't afford to forget.