A group of Texas lawmakers gathered in late February to celebrate what they considered to be an important milestone in their state’s history: 10 years since the passage of a constitutional amendment that banned same-sex marriage.
Seemingly without a sense of irony, these politicians and their allies from the Religious Right group Texas Values came together at the state capitol in Austin to cut a white and pink wedding-esque cake that read “10th Anniversary of 2005 Marriage Act.” In attendance were some top state officials, including Lt. Gov. Dan Patrick (R), who told the assembled crowd that God does not want marriage equality.
“It’s a battle, but we will be victorious,” Patrick said. “Because with God, who can be against us?”
State Sen. Donna Campbell (R-New Braunfels) took things a step further, citing a common Religious Right claim that Christians are being discriminated against in states that are forced by courts to allow same-sex marriage.
“It is not discriminatory, as they want to call it,” she cried. “It is actually discriminating against who? Against us! Against our families, our values. They’re discriminating against us for honoring our traditional values and believing in God.”
Slowly but surely, marriage equality has become the law of the land in the United States. Just a few years ago, 30 states had constitutional amendments prohibiting same-sex marriage. Today, 37 states permit same-sex unions.
But of those 37, 26 were ordered to allow marriage equality by federal courts while only three approved it by popular vote – facts that do not sit well with Religious Right activists.
In response, politically active fundamentalists are determined to enact legislation that would either stop judges from issuing licenses to same-sex couples or permit the owners of for-profit businesses to refuse service to gay couples as long as they cite a religious objection to same-sex unions.
Think of it as kind of a contingency plan: If Religious Right groups can’t stop the spread of same-sex marriage in the states, they’ll do all they can to gum up the works by giving fundamentalists a “religious freedom” right to legally discriminate against LGBT people.
Texas is a clear leader in the far right’s assault on civil rights, as Lone Star State lawmakers filed at least 14 bills targeting LGBT persons for consideration during the 2015 session. A single politician, Rep. Cecil Bell (R-Magnolia), was responsible for three of those bad bills, including one in January that would strip state employees of their salaries and pensions should they “recognize, grant, or enforce a same-sex marriage license.”
Bell’s proposal would even go so far as to force state courts to rule against anyone who challenges that measure, should it pass. More recently, Bell sought to protect “conscientious objectors,” defined as anyone who believes that marriage should be limited to one man and one woman, who refuse to serve LGBT persons in any capacity. HB 3602 is so broad that it could go far beyond shielding clerks who refuse to issue marriage licenses to same-sex couples by offering legal protection for police, fire fighters or paramedics who will not assist LGBT persons due to a religious objection.
In South Carolina, an unusual proposal popped up in December that would target judges who so much as hear a case related to gay marriage. HB 3022 states that no government official is permitted to recognize same-sex marriage. It also mandates that judges must throw out any case challenging the measure; any judge who does not comply fully with the bill would lose his or her job.
But just to make sure it has all the bases covered, South Carolina is also considering a bill that would call for a constitutional convention to amend the U.S. Constitution in order to prohibit marriage equality on the national level. This, however, may be too much even for the Palmetto State. The South Carolina Senate Judiciary Committee on March 18 failed to make a decision on the proposal one way or another. One lawmaker, Sen. Greg Hembree (R-Horry County), said there is no need for the state to act on this matter before the U.S. Supreme Court issues a ruling on the constitutionality of same-sex marriage bans in the states. (That decision is expected in June.)
Meanwhile in Alabama, which has been ground zero for the Religious Right’s fight against same-sex marriage thanks to Alabama Supreme Court Chief Justice Roy Moore’s crusade against marriage equality (see “Court Jester,” April 2015 Church & State), a bill passed the House of Representatives in March that allows anyone with the power to officiate weddings to opt out of same-sex ceremonies and would protect them from related lawsuits. The Montgomery Advertiser reported that HB 56 does not “directly address” same-sex marriage, but opponents of the proposal say other provisions in the bill could protect hospitals and other religiously affiliated organizations that deny benefits or services to same-sex couples on religious grounds.
Critics say the measure is downright cruel.
“This would empower a religious hospital to refuse to allow a legally married spouse to make medical decisions for their incapacitated partner – or allow a religiously affiliated university to refuse to provide appropriate tax documents to an employee who has divorced or remarried,” said the Human Rights Campaign (HRC) in a blog post March 5.
In Arkansas, lawmakers have sought to stop localities from protecting LGBT rights. The Washington Post reported that as of late February just two towns, Eureka Springs and Conway, had ordinances that would be struck down by the measure. But other cities, such as Little Rock, had considered creating new protections for LGBT persons in response. The HRC called on Gov. Asa Hutchinson to veto the measure, which has passed both the Arkansas House of Representatives and Arkansas Senate.
“The governor has the power to tell the nation that Arkansas welcomes all people, regardless of sexual orientation or gender identity,” said HRC Arkansas State Director Kendra R. Johnson. “Senate Bill 202 destroys local control and denies municipal governments the ability to pass civil rights protections for people in their cities.” (Hutchinson allowed the measure to become law without his signature.)
There is even legislation in Michigan that would allow publicly funded adoption agencies to discriminate based on religion. In March, the Michigan House of Representatives approved a measure that would allow groups to refuse adoption services to gay couples if doing so would come into conflict with “sincerely held religious beliefs contained in a written policy.”
Those who opposed the measure expressed their outrage.
“You are blinded by your own faith and you are putting it before your obligation to the [state] constitution,” Rep. Jeff Irwin (D-Ann Arbor) said during debate on the proposal. “It’s not just a license to discriminate. It’s actually writing a check for the discrimination.” (A similar measure failed to pass in Florida.)
The most extreme measure of all, however, comes from a lone attorney in California who is so troubled by homosexuality that he wants to make it legal to kill LGBT persons. A ballot initiative titled the “Sodomite Suppression Act,” which was proposed by Huntington Beach attorney Matt McLaughlin, referred to same-sex orientations as “a monstrous evil.”
It goes on to declare that “…the People of California wisely command, in the fear of God, that any person who willingly touches another person of the same gender for purposes of sexual gratification be put to death by bullets to the head or by any other convenient method.”
The measure would also ban the distribution of “sodomistic propaganda,” which would carry a fine up to $1 million or time in jail and prohibit LGBT people from holding public office. If passed, it could not be overturned by anything but a quorum of the California Supreme Court – as long as the justices weren’t gay. Its extreme language earned comparisons to Uganda’s infamous “kill the gays” bill, and Russia’s ban on “gay propaganda.”
This offering came about thanks to California’s loose laws on ballot initiatives, which permit anyone to file a proposed ballot measure so long as they pay $200 and the public receives one month to respond before the state attorney general’s office publishes a summary of the initiative. In order to actually make it onto the ballot, however, McLaughlin would need to collect about 366,000 signatures. He may not get the chance. In late March, Attorney General Kamala Harris asked a state court to grant her the authority to prevent the measure from becoming eligible for a public vote.
“This is not about whether we like something or not, or whether we simply find it offensive or troubling,” Harris said. “In this case, we are talking about a proposal that literally is calling for violence. It’s calling for vigilantism. It’s calling for the public to be able to shoot in the head a member of the LGBT community. I, frankly, do not want to be in the position of giving any legitimacy to those words.”
Amid this flurry of activity in the states, one high-profile case of the Religious Right’s anti-LGBT animus has inspired backlash of its own. On March 26, Indiana Gov. Mike Pence signed Senate Bill 101, which its drafters claim is based on the federal Religious Freedom Restoration Act (RFRA), a 1993 law intended to protect religious minorities.
Like the federal version, Indiana’s RFRA states that the government cannot substantially burden religious practice unless it has a “compelling” reason for doing so. But the language went way beyond that and opened the door to discrimination against LGBT persons.
Under fire, Pence and his allies argued that 19 other states have laws like Indiana’s, and the measure only applies to government activities. But people who have analyzed the bill, including Americans United State Legislative Counsel Amrita Singh, disagree.
Singh and other critics say there are important differences between the Indiana law and measures that have passed elsewhere. For example, Indiana’s law defines corporations as “people” giving for-profit companies broad new powers to assert religious liberty claims. In addition, the legislation contains language that many observers believe could be used by religious people to override statutes protecting LGBT people that some Indiana communities have passed.
Singh said the bill appears to be a reaction to a federal court ruling legalizing same-sex marriage in Indiana.
“Now that marriage bans are being overturned, as recently happened in Indiana, people are reacting by passing RFRAs that could allow them to discriminate against and refuse service to same-sex couples,” she said.
Opponents of the law note that Pence signed it in a private ceremony flanked by several well-known anti-LGBT activists. Many national Religious Right groups also backed the measure. The message sent was that the law does in some way impact gay rights – and not favorably.
A firestorm quickly erupted in Indiana. People took to the streets, and a wide array of groups pledged to take their business away from the Hoosier State. The National Collegiate Athletic Association (NCAA), headquartered in Indianapolis, expressed reservation about holding future events there, such as the NCAA Men’s Final Four basketball tournament. The Christian Church (Disciples of Christ), which has held its annual convention in Indianapolis three times since 1989 and is scheduled to do so again in 2017, threated to find a new location that is “hospitable and welcome to all of our attendees” before Pence signed the RFRA bill. And Salesforce.com, a cloud computing firm based in San Francisco that purchased an Indiana-based firm last year for $2.5 billion, has promised it will be “canceling all programs that require our customers/employees to travel to Indiana to face discrimination,” according to a tweet from the company’s CEO.
That was just the initial wave. Angie’s List, a service that rates contractors and other service providers that is valued at $315 million and headquartered in Indianapolis, has said it will not spend $40 million to expand nor will it create another 1,000 jobs over the next five years because of Indiana’s new law. Two governments even joined in the protest. Seattle Mayor Ed Murray banned city employees from going to Indiana on official business, and Connecticut Gov. Dan Malloy signed an executive order prohibiting state-funded trips to the Hoosier State.
Some of the law’s defenders boasted that they intend to use Indiana’s RFRA to discriminate. A man who identified himself only as “Ryan” told RadioNow 100.9’s “Kyle & Rachel” that he owns a restaurant in an unidentified location and he already discriminates against LGBT people. Although “Ryan” did not explain his criteria for identifying gay customers, he claimed March 27 that he once turned away a couple he believed was gay shortly before closing time by telling them something in his kitchen was broken.
“I’m 100 percent behind the bill,” Ryan said. “I understand people’s lifestyles and what they want to do, but I don’t want “Ryan” was asked repeatedly by the hosts to give some identifying details about the restaurant he claimed to own, but refused to do so. His claims cannot be verified.
In a related incident, a film produced in Evansville, Ind., about the marriage of two women called “A Wedding Like That” hit a production snag when a company slated to do post-production work on the film dropped the project because of a religious objection to the subject matter.
“I don’t think that this person or this company even, that they were trying to use that (RFRA) bill in that way, but it just came at a time when all this was happening and to me personally, it’s indicative of what you can expect, I think, from this bill,” director Lewis Chaney told WEHT Eyewitness News in Henderson, Ky.
In the small northern Indiana town of Walkerton, the owners of Memories Pizza told same-sex couples not to even consider asking them to cater events.
“If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no,” said Crystal O’Connor, co-owner of the pizzeria. “We are a Christian establishment.” (The pizzeria was harshly criticized on social media sites and claimed it had to shut its doors. In response, conservative Christians began raising money for the restaurant, eventually collecting nearly $1 million.)
Pence, a Religious Right favorite and former member of the U.S. Congress, seemed to realize that events were spiraling out of control. He attempted to defend the bill, but things didn’t go well. During an appearance on ABC News, Pence was grilled by host George Stephanopoulos and asked repeatedly if the law allows for discrimination. He refused to answer.
On March 31, the Indianapolis Star ran a cover that read simply, “Fix This Now.” An editorial called on the legislature to act quickly.
“Only bold action – action that sends an unmistakable message to the world that our state will not tolerate discrimination against any of its citizens – will be enough to reverse the damage,” asserted the newspaper. “Gov. Mike Pence and the General Assembly need to enact a state law to prohibit discrimination in employment, housing, education and public accommodations on the basis of a person’s sexual orientation or gender identity.”
Pence, who was a regular speaker at the Family Research Council’s “Values Voter Summit” during his years in Congress and has been touted as a possible presidential candidate, was never likely to go that far. But after a week-long flurry of activity, the law was amended to make it clear that it does not override local ordinances banning discrimination against LGBT residents. Some advocates of gay rights applauded the move, while others said it didn’t go far enough. Religious Right groups were furious that the change was made at all.
Ultimately, the backlash in Indiana could have an effect on the other bills that are little more than an attempt to shield the Religious Right and its allies from marriage equality – but only time will tell. Arkansas’ legislature passed a “religious freedom” bill that some observers say went even beyond the Indiana version, and Georgia lawmakers considered one.
In Arkansas, Hutchinson seemed to have little interest in seeing an Indiana-style backlash erupt in his state. On April 1, he asked the legislature to recall the bill and make changes. (Hutchinson may have been influenced in part by the Walmart Corporation, a political powerhouse in the state, which issued a statement opposing the measure.) Arkansas lawmakers quickly agreed to amend the bill and did so the next day, around the same time Indiana legislators were working on their fix.
Americans United issued a statement criticizing efforts to turn religious freedom into a device to harm the rights of others.
“The Religious Right has tried in two states to weaponize the concept of religious freedom,” said AU Executive Director Barry W. Lynn in a statement. “The Indiana legislature has improved their bill somewhat, but we still don’t believe these nondiscrimination provisions go far enough. Yet, the Religious Right greeted these new but limited protections as though they’re a harbinger of the apocalypse.”
Added Lynn, “Meanwhile, in Arkansas, legislators claim to have fixed their RFRA by having it mirror the federal version. Because the Supreme Court reinterpreted the law so drastically in the Hobby Lobby ruling, it could allow discrimination and undermine civil rights.
“These bills,” Lynn concluded, “have nothing to do with religious freedom.”
The day after the Indiana and Arkansas votes, the American Family Association issued a statement calling on all states to pass “religious freedom” bills to protect Christians who don’t want to serve gays. The group called the push for bills “crucial.”
One Louisiana legislator was quick to pick up the challenge. State Rep. Mike Johnson (R-Bossier City) has introduced legislation that explicitly grants for-profit businesses the right to refuse service to LGBT people. Johnson’s proposal, H.B. 707, would also allow private businesses to refuse to extend the same benefits to legally married same-sex couples that are given to opposite-sex couples. Louisiana Gov. Bobby Jindal has endorsed the bill.
Legislators in Maine have introduced a similar bill.
The fight over legislative proposals like this will only intensify if the Supreme Court extends marriage equality nationwide next month. If the Religious Right has its way, more states may find themselves embroiled in Indiana-style controversies in the years to come.