States of Rebellion

Prodded By Religious Right Groups, Legislatures Around The Country Are Trying New Schemes To Block Marriage Equality

Think of a bill, and the people who pass it, and you likely imagine the U.S. Con­gress. Our federal legislative body occupies significant media space and not without reason; it wields significant influence. It can respond to executive and judicial actions and shapes our political future.

But state legislatures are arguably as important as their federal equivalent. Many are also dominated by a conservative wing of the Republican Party that frequently promotes the Religious Right’s priorities. That’s reflected by a spate of recent legislation.

Consider Florida. There, State Rep. Charles Van Zant (R-Keystone Heights) drafted a bill that cited a belief in the Creator as justification for a total abortion ban.

“The Legislature finds that all human life comes from the Creator, has an inherent value that cannot be quantified by man, and begins at the earliest biological development of a fertilized human egg,” it reads. “The Legislature urges the United States Supreme Court to overturn Roe v. Wade…and Planned Parenthood of Southern Pennsylvania v. Casey.” (Van Zant is a Southern Baptist minister.)

Van Zant’s bill, if passed, would make it a felony to perform abortions or operate an abortion clinic in the state. Since it contradicts existing legal precedent, most legal observers agree that it would be unenforceable. But enforceability may not be the real objective for Van Zant and his fundamentalist peers.

In South Carolina and Tennessee, legislators have put forward a legal argument more commonly associated with the Civil War: nullification. They assert that the Supreme Court violated the rights of individual states when it overturned their bans on same-sex marriage in Obergefell v. Hodges last year. Since people in those states voted to ban the practice, they argue, the high court’s ruling can be ignored. It’s the same argument Southern states trumpeted as justification for their decision to secede from the Union, and again when they resisted desegregation.

South Carolina’s nullification bill, H.B. 4513, also includes sectarian language, “[T]he founders of America recognized that the rights of mankind find their source in the created order,” it reads, adding that “natural marriage, consistent with the created order, and the law of nature and nature’s God, has always consisted of one man and one woman.” The Sup­reme Court’s Obergefell verdict, it says, “flies in the face of reality, the created order, and the law of nature.”

It’s nearly identical to Tennessee’s H.B. 1412. In fact, the bills seem to be copied from the same model policy. Both cite long-dead English jurist Sir William Blackstone – a Christian figure favored by another Religious Right celebrity, Alabama Supreme Court Chief Justice Roy Moore. Both refer to “the created order” and “nature’s God.” And both, experts say, are unlikely to survive a legal challenge if they ever become law.

But their sponsors are undaunted. Tennessee State Rep. Mark Pody (R-Lebanon) told his church, Woodmont Bible Church in Nashville, that he believes he is “supposed to be speaking to the unsaved, to the people that are performing same-sex marriages, to the people involved in same-sex marriage, it is wicked, it is wrong and I am doing the best I can to warn them.

“I believe that the bill that we are trying to put out right now is to say, ‘No, it will not happen here!’” he added.

No legal precedent supports the idea that a state may refuse to enforce a Supreme Court verdict, so these attempts at nullification are doomed to fail. More savvy opponents of marriage equality know this and are focusing on erecting roadblocks to marriage for same-sex couples.

So-called “religious freedom” bills began appearing with increasing frequency in state legislatures roughly two years ago. According to their sponsors, these bills are simply re-writes of the federal Religious Freedom Restoration Act (RFRA), but the truth is often more complicated.

“When the Supreme Court ruled for Hobby Lobby in Hobby Lobby v. Burwell, it drastically changed the way RFRA works,” explained Americans United Legislative Director Maggie Garrett, “and now people are trying to exploit that decision by trying to use RFRA to deny rights to women and LGBT Americans.”

According to critics like Garrett, most state RFRA bills proposed post-Hobby Lobby aren’t really about religious freedom. “They are usually an attempt to enshrine a right to discriminate in state law,” she said.

Opponents fear that these bills would allow business owners to refuse to serve individuals based on their sexual orientation. This form of discrimination isn’t currently prohibited by federal law, or by most states, but some municipalities have enacted anti-discrimination ordinances that protect LGBT people. State RFRAs could trump these ordinances and allow business owners and others to violate them at will.

Georgia has become a flashpoint for the effort to pass state-level RFRAs. When its legislative session opened in January, legislators had pre-filed not one but four versions of a RFRA. It’s round two of an older fight: Legislators attempted to pass a RFRA last year.

“People of faith would be entitled to better treatment by courts,” its primary sponsor, State Rep. Josh McKoon (R-Columbus), said at the time. “That’s the difference it would make.” 

Jay Michaelson, a correspondent for The Daily Beast, a news website, called the bill the country’s “harshest ‘religious freedom’ law” in an editorial and claimed it would allow “discrimination, judicial obstruction, and even domestic violence.”

The bill died last year after the state’s business community rallied against it, but that backlash apparently didn’t deter lawmakers from introducing the same proposal this year.

Indiana also suffered RFRA-related déjà vu. Lawmakers there introduced S.B. 66, a so-called “super RFRA” that would have required the state to treat religious beliefs “with the greatest deference.” It also would have repealed a controversial “fix” to a RFRA bill passed by Gov. Mike Pence (R) last year.

S.B. 66’s predecessor spawned national infamy. The National Collegiate Athletic Association threatened to move the Final Four men’s basketball tournament from Indianapolis; the National Basketball Association, the Women’s National Basketball Association and the National Football League also criticized the move.

When corporations like Angie’s List announced that they would reconsider doing business in the state, Pence capitulated and agreed to pass a “fix” to the bill that clarified that it would not override local anti-discrimination laws. 

That mollified few on either side of the debate. According to the Indianapolis Star, Religious Right activists opposed any concession to LGBT rights. “By taking RFRA protection away from small business owners at the local level this additional legislation creates a problem the current law was designed to fix,” the Indiana Family Institute’s Curt Smith said at the time.

The American Family Association (AFA) also slammed the fix. “Our legal advisors tell us that it actually changes our law in a way that could now erode religious freedom across Indiana,” said Micah Clark, who heads the AFA’s Indiana affiliate.

Both groups represent a significant swath of Indiana voters, which observers say may have influenced some legislators to reintroduce a version of last year’s original RFRA. The effort floundered when Senate Judiciary Chairman Brent Steele (R-Bedford) refused to hear testimony regarding the new bill. That killed S.B. 66, but the issue didn’t disappear. Legislators promptly proposed S.B. 344, yet another version of RFRA, which they attempted to save by adding limited civil-rights protections for lesbians, gays and bisexuals. That compromise failed to impress far-right colleagues, and S.B. 344 died when its sponsor retracted it.

The state’s Religious Right groups have already ensured that the RFRA debate endures. The Indiana Family Institute, Indiana Family Action and the American Family Association’s Indiana branch have all sued the city of Bloomington over its anti-discrimination ordinance, which they claim violates their members’ religious freedom rights. That case is ongoing.

RFRA bills are also pending in Florida, Colorado, Hawaii and Iowa. Some would create RFRAs where none exist; others expand existing pieces of legislation.

Not all discriminatory bills are branded as RFRA bills. Some are written as “religious protection” bills, but in fact are religious refusals intended to create a legal loophole for individuals and organizations that refuse to adhere to local anti-discrimination laws. This is particularly apparent in Oklahoma. The state already has a RFRA in place, but legislators are now seeking to expand it and have concurrently introduced numerous versions of discriminatory bills.

H.J.R. 1059 would create a ballot initiative to amend the state constitution in a way that allows religious organizations as well as for-profit businesses and individuals to discriminate where local ordinances would otherwise prohibit it. It would also allow adoption agencies to refuse to place children with same-sex couples. 

S.B. 1328 operates in a similar vein; it would create the Right of Conscience Act to allow individuals, businesses and religious organizations to refuse to provide services to anyone on religious grounds. ThinkProgress reported in January that it has a virtual twin, H.B. 1597, which declares simply that “no business entity shall be required to provide any services, accommodations, advantages, facilities, goods or privileges related to any lesbian, gay, bisexual or transgender person, group or association.”

As if they hadn’t already made their intentions clear, state senators also proposed S.B. 898, which attempts to broaden the state’s existing RFRA to make it more difficult for the government to enforce anti-discrimination ordinances.  

Yet another bill is intended to block public officials from recognizing the Supreme Court’s Obergefell verdict. S.B. 973 would prevent coun­ty clerks and other government employees from granting marriage licenses to same-sex couples and recognizing same-sex marriages in other ways. The bill, if passed, could affect clerks as well as other officials who simply allow a married same-sex couple to change the names on their drivers’ licenses. Violators could have their salaries docked by the state.

Other pending Oklahoma bills would allow public officials to refuse to perform the marriages of same-sex couples create so-called “covenant marriage,” a legal status available only to opposite-sex couples, and forbid public schools from referring students to counselors that affirm LGBT orientations without notifying parents.

In other states, legislators have introduced proposals that are clearly inspired by the recent case of Kim Davis, the Rowan County, Ky., clerk who spent six days in jail for refusing to issue marriage licenses to same-sex couples. Virginia lawmakers, for example, are pushing S.B. 40, which would allow clerks and deputy clerks to exempt themselves from issuing marriage licenses to any couple and would require the Department of Motor Vehicles to issue marriage licenses in some cases. The bill was introduced by State Rep. Bill Carrico  (R-Galax), who compared ho­mo­sex­uality to cancer earlier this year while arguing against a measure to ban “ex-gay” conversion therapy in the state.

This emerging focus on restricting LGBT rights post-Obergefell doesn’t surprise veteran observers of the Religious Right. This tactic – eroding a Supreme Court verdict via state legislatures – has roots in the movement’s response to Roe v. Wade, school desegregation and other high court rulings the far right didn’t like. 

Historians of the Religious Right note that the issues of abortion and desegregation specifically spurred the formation of the theocratic movement and established a template for future state-focused political campaigns. For Christian fundamentalists, especially in the South, the high court’s order to desegregate threatened what they believed to be the religious character of segregated schools like Bob Jones University (BJU).

Randall Balmer, an evangelical author and Dartmouth College professor, wrote in Politico last year that BJU’s then-president, Bob Jones Jr., told the Internal Revenue Service (IRS) in 1970 that BJU would not integrate – and that integration violated its religious-freedom rights.

“Although Bob Jones Jr. . . . argued that racial segregation was mandated by the Bible, [Jerry] Falwell and [Paul] Wey­rich quickly sought to shift the grounds of the debate, framing their opposition in terms of religious freedom rather than in defense of racial segregation,” Balmer wrote.

BJU attempted to skirt IRS regulations, first by admitting a black student part-time and then by announcing it only rejected unmarried black applicants (a stipulation it didn’t enforce for white applicants). These maneuvers failed; the IRS revoked the school’s tax exemption in 1976. BJU eventually accepted black students, though it banned interracial dating until 2001.

The historical record demonstrates that the Religious Right’s original “religious freedom”’ claims were really demands to discriminate. The BJU debate occurred concurrently with the debate over legal abortion, which became a national reality in 1973.

According to Balmer, both issues spurred the formation of the Religious Right, and both influenced its tactics. That’s arguably most visible in its response to Roe. The Supreme Court’s verdict left states room to restrict abortion access, and the Religious Right seized upon that loophole through burdensome regulations on clinics, paternalistic laws subjecting women to lectures and ultrasounds and bans on so-called “partial-birth abortion.” Mainstream bodies like the American College of Obstetricians and Gynecologists opposed these measures, but they took hold and successfully curtailed abortion access in much of the country.

Although the high court’s verdict in Obergefell was a clear win for marriage equality, it left some questions unanswered. Religious Right groups have seized on this ambiguity and are recycling the tactics they pioneered in the 1970s: discriminatory “religious freedom” claims and state laws intended to restrict the reach of a Sup­reme Court verdict.

Advocates like Garrett don’t intend to let those tactics succeed. Under the auspices of Protect Thy Neighbor, an Americans United project, she monitors anti-equality bills alongside a dedicated team of staffers.

Legislatures move fast, and the status of some of these bills may have changed by the time you read this. For the most current information, check Protect Thy Neighbor’s new Legislation Tracker, which is updated twice weekly to provide the latest information about discriminatory bills.