Despite a major victory in Arizona this week, the battle over where the line will be drawn between "religious freedom" and protection for gays against discrimination is only just heating up, advocates on both sides say.
Since August 2013, lawmakers in at least 13 states have introduced legislation similar to the controversial Arizona bill — vetoed Wednesday — as a new front line emerges in the battle over same-sex marriage and gay rights.
Eunice Rho, advocacy and policy counsel at the ACLU, said there has been a “significant uptick” in the introduction of such legislation the last few years.
“Our opponents have made it quite clear that this is a deliberate strategy on their part to erode the significant gains that LGBT people have made,” she said Thursday. “What is noteworthy in 2014 is just the sheer scope of these kinds of bills. They are broader than we had ever seen before.”
The bills, generally modeled off a 1993 federal law (the "Religious Freedom Restoration Act") that set the standard for when a religious protection argument can be invoked, are being pushed just as judges in Virginia, Oklahoma, Utah and Texas recently knocked down bans on same-sex marriage — the first victories for gay marriage advocates in the South and conservative states.
And, since January, four more states have allowed gays and lesbians to wed, bringing the number of states where such unions are legal to 17 (the District of Columbia permits it, too).
“Fifty years ago, businesses were allowed to turn people away because of the color of their skin and we as a nation decided that was unacceptable.”
Though gay marriage opponents had raised concerns about religious protection many years ago, the recent sweeping changes have made their work “more urgent” to “ensure that religious liberty is protected,” said Peter Sprigg, senior fellow for policy studies at the Family Research Council.
Some of those efforts have included the recent legislation, which in states like South Dakota, Tennessee and Kansas, did target gays, according to the ACLU. Gay marriage opponents say the Arizona bill was not specifically aimed at allowing businesses or individuals to deny services to the LGBT community, though gay rights supporters maintain it was.
Arizona Gov. Jan Brewer came under a lot of pressure from businesses, the major sports leagues and human rights advocates to veto the legislation. Its defeat "proves the case that we have been making,” Sprigg said. “It validates our sense of alarm over this issue because it shows that there is a conflict between the same-sex marriage movement and religious liberty.”
The ACLU considers bills in Mississippi, Missouri, Oklahoma and Kansas to be the biggest threats among the latest legislation, which is being propelled by a few lawsuits involving gay-marriage opponents who run small businesses in states where same-sex marriage is new.
They want the right, based upon their religious beliefs, to deny service to gay customers, said John Dinan, a political science professor at Wake Forest University specializing in state constitutional law.
The businesses include a Washington state florist, an Oregon cake maker, a Hawaii bed & breakfast, a New Mexico wedding photographer and a Kentucky print shop.
Having gay marriage in more states is “likely to increase the number of conflicts that we see with cases concerning business owners or others who have religious (conscientious) objections to same-sex marriage,” Dinan said. “This is the new front in the debate.”
“Our opponents have made it quite clear that this is a deliberate strategy on their part to erode the significant gains that LGBT people have made.”
Alliance Defending Freedom is representing the New Mexico wedding photographer in a lawsuit it has asked the U.S. Supreme Court to review and has given advice on some of the bills, including in Arizona.
Joe LaRue, legal counsel for the group, said religious liberty, not just in the same-sex marriage context, “is going to be a big, big battleground for years to come.”
“And the reason is, the proponents of tolerance want everybody to be tolerant of them, but they are unwilling to be tolerant of those who disagree with them,” he said.
Though scholars have said some of the bills — the ones that didn’t specifically target gays — could perhaps survive a Supreme Court review, gay rights advocates noted they see more victories ahead on this new front.
“This is sort of a ‘Plan B,'” said Rose Saxe, senior staff attorney at the ACLU LGBT Project, calling it a “shifting strategy” by their opponents as more states allow gay marriage.
Some legal religious scholars have encouraged compromise during the transition period, but Saxe said there could be none.
“Fifty years ago, businesses were allowed to turn people away because of the color of their skin and we as a nation decided that was unacceptable,” she said. “Treating people differently simply because of who they are is discrimination and we think it’s inappropriate to allow just a little bit of discrimination here just as it would have been in any other context.”
First published February 27 2014, 4:21 PM