WASHINGTON ― It’s been almost a year since the Supreme Court’s historic ruling in favor of same-sex marriage. And in that time, there’s been an ugly backlash.
A new law in Mississippi lets any person or business deny services to same-sex couples because of religious objections. In North Carolina, the governor signed a law banning cities from passing LGBT anti-discrimination ordinances and barring transgender people from using bathrooms that match their gender identity. Tennessee also has a “bathroom bill,” plus a bill that lets mental health professionals refuse to treat LGBT patients.
There are more than 100 active bills like this right now, across 22 states. They fall into a handful of categories — some are bathroom bills, some let judges refuse to marry same-sex couples, some let businesses deny services to LGBT people — but they all have the same goal: legalizing discrimination against queer people.
While it might seem like this onslaught of legislation came out of nowhere, religious conservatives have been working toward this kind of full-blown assault for years. They’ve been test-driving various anti-LGBT bills at local levels, anticipating the Supreme Court’s Obergefell decision on marriage equality and preparing ways to weaken it.
“Specific laws like this that seek to target and marginalize one small segment of the population is nothing less than mean-spirited,” White House press secretary Josh Earnest said Tuesday. “President Obama has talked on a number of occasions about the important progress our country has made with regard to civil rights. This is a good illustration that the fight for civil rights is not over.”
Conservatives have found some success with these bills, particularly when they can move them under the radar. When the Arkansas governor rescinded local LGBT rights ordinances in 2015, for example, it got next to no media attention. Last month, North Carolina passed one of the most sweeping anti-LGBT laws in the nation within 24 hours, moving so quickly that critics hardly had time to campaign against it.
But some of their efforts have failed spectacularly. Facing outcry from the business community, Arizona Gov. Jan Brewer (R) vetoed a bill in 2014 that would have let businesses cite their religious beliefs to deny services to LGBT customers. Indiana Gov. Mike Pence (R) got hammered in the media last year for signing a law that allowed businesses to discriminate against LGBT people. He quickly signed an "amended" version of the law to scale back its provisions.
"Was I expecting this kind of backlash? Heavens no," Pence said at the time.
Ironically, the business community has played a major role in stopping anti-LGBT laws allegedly meant to empower them. Companies based in states with these bills, and big corporations with hubs in those states, have warned that these laws are bad for the state's economy and would lead to discrimination lawsuits. Some have even threatened to take their business elsewhere if these laws take effect -- a response that no governor wants.
Anti-LGBT activists have a blueprint for how to do this. At the 2014 Values Voter Summit in Washington, D.C., they talked about plans for using the same tactics the anti-abortion movement used, post-Roe vs. Wade, if the Supreme Court ruled for marriage equality. Frank Schubert, the strategist behind California’s Proposition 8, and National Organization for Marriage president Brian Brown described a strategy of incrementally eroding LGBT rights. Schubert even floated the idea of modeling his efforts on a partial-birth abortion campaign, which resonated with the public even if it was distorted.
That appears to be the tactic they used in Houston last year, and it worked. The city was weighing an LGBT anti-discrimination measure, the Houston Equal Rights Ordinance, and it was expected to pass. The city itself had a lesbian mayor, and an anti-discrimination ordinance had already been in effect for three months; the subsequent vote stemmed from a lawsuit demanding Houston either repeal it or have residents vote on it.
But religious conservatives overwhelmingly defeated it, and they did it by running television ads that demonized transgender women and suggested the ordinance would allow male sex predators entry into women’s rest rooms.
When HERO went down, conservatives saw a strategy that worked, and soon bathroom bills began popping up all over the country. They have since moved on to test-drive other discriminatory measures.
Here's a snapshot of all the anti-LGBT bills currently active in state legislatures (or at least the bulk of them, thanks to the exhaustive efforts of the American Civil Liberties Union). You can see which ones conservatives think have the best shot of becoming law, given the spike in those kinds of bills in different states.
Religious Freedom Restoration Acts
These bills are popping up all over the place. Ironically, Democrats used to champion this legislation. The federal RFRA of 1993, co-written by Rep. Jerrold Nadler (D-N.Y.), came about after two members of the Native American Church in Oregon were fired from their positions as drug counselors for using peyote during a religious ritual. The law outlines how, and when, the government can and cannot infringe on people's religious practices. The law was meant "as a shield, not a sword," as Nadler likes to say.
But it's been perverted in recent years. Conservatives are putting forward state-level RFRAs to let people claim religious liberty as a justification for denying services to LGBT people. So you've got the evangelical Christian bakery that refuses to bake a cake for a same-sex wedding, for example, or the photographer who refuses to provide services to a gay couple. In some cases, these bills are written so broadly that they also allow discrimination against single mothers, interfaith couples and interracial couples.
Seven states have active RFRA bills: Colorado (HB 1180), Hawaii (HB 1160), Iowa (HF 2032, HF 2200, SF 2171), Michigan (SB 4), Mississippi (SB 2093, SB 2822), North Carolina (HB 348, SB 550) and Oklahoma (HB 1371, SB 440, SB 723, SB 898).
Marriage-Related Religious Exemption Laws
There are other kinds of non-RFRA bills that provide a religiously based exemption regarding same-sex marriage. Some only apply to religious organizations; others apply to commercial or government officials.
First Amendment Defense Acts -- These bills, in essence, allow any person, business or taxpayer-funded organization to ignore any law that conflicts with their religious beliefs about marriage. Yes, it's as sweeping as it sounds. It not only discriminates against LGBT people, but can extend to single mothers and anybody with a sexual relationship outside of marriage. A state-contracted counselor, for example, could deny services to a single mom. Taxpayer-funded adoption agencies could refuse to place children in the homes of same-sex married couples. Government employees could decline to file official forms for gay couples (remember Kim Davis?). Three states have active FADA bills: Hawaii (SB 2164), Illinois (SB 2164) and Oklahoma (SB 440).
Pastor Protection Acts -- These let churches refuse to perform marriages that conflict with their religious beliefs. The First Amendment already covers this right, but sometimes lawmakers like to pass bills just to send a message. So, we have Pastor Protection Acts. Fourteen states have active PPA bills: Arkansas (HB 236, SB 120), Colorado (HB 1123), Kentucky (HB 17, HB 28), Louisiana (HB 597), Maryland (HB 16), Michigan (HB 4732, HB 4855, HB 4858), Minnesota (SF 2158), Missouri (HJR 97, SJR 39, HB 2000, HB 2040, HB 2730), Mississippi (HB 587, HB 737), New Jersey (AB 1706), Ohio (HB 286), Oklahoma (HB 1371, SB 811), South Carolina (H 4446, H 4508) and Tennessee (HB 2375, SB 2329).
Government-officials-using-your-taxpayer-funds-against-you bills -- Some bills let judges and clerks refuse to perform same-sex marriages or issue marriage licenses to gay and lesbian couples. Four states have active bills like this: Kentucky (HB 17, HB 14), Minnesota (SF 2158), Mississippi (HB 586, HB 1342) and South Carolina (SB 116).
No-wedding-cake-for-non-straight-non-white-heathens bills -- These allow businesses to refuse to provide goods or services related to marriages that conflict with their religious beliefs. That could mean a frame shop refusing to sell pictures frames that are going to be used for a same-sex wedding, an interracial marriage or an interfaith marriage. Four states have active bills like this: Kentucky (SB 180), Minnesota (SF 2158), Missouri (HJR 97, SJR 39) and Ohio (HB 296).
Other marriage exemption bills -- These bills provide yet other kinds of religious exemptions relating to same-sex marriage. Five states have active bills in this category: Kentucky (HB 31), Michigan (HB 4733), Missouri (HB 2754), Oklahoma (HB 1125, HB 1599, SB 478, HJR 1059, SB 973) and South Carolina (H 3022, H 3150, H 4513).
This legislation bans transgender people from using public bathrooms that match their gender identity, and even criminalizes it. Nine states have active bills relating to this: Illinois (HB 4474), Kansas (SB 513, HB 2737), Kentucky (HB 364), Minnesota (HF 3395, HF 3396, SF 3002), Missouri (HB 1624, SB 720), Mississippi (HB 1258), Oklahoma (HB 2215, HB 3049, SB 1014), South Carolina (SC 1203) and Tennessee (HB 2414, SB 2387, HB 2600, SB 2275).
These let adoption and foster care agencies refuse to provide any services that conflict with their religious beliefs about marriage, such as same-sex couples. This is regardless of what is in the best interests of a child. Three states have pending bills like this: Alabama (HB 158, SB 204), Nebraska (LB 975) and Oklahoma (HJR 1059, HB 2428).
Other Generally Terrible Anti-LGBT Bills
It turns out there are too many categories for all the bills out there, but there's a few more of note: Two states have bills (AB 1212 in California; SB 210 in South Carolina) that require public universities to provide funds for student organizations, regardless of whether the organization discriminates against LGBT people based on religious beliefs. Three states have bills (HB 325 in Arkansas; HJR 1059 in Oklahoma; and Tennessee's HB 566, SB 397, HB 1840 and SB 1556) that let health professionals deny services to LGBT people by citing religious objections. And there's one bill in Oklahoma (SB 1289) that prevents local governments from passing nondiscrimination protections, including LGBT protections, that go further than protections at the state level. North Carolina's recent anti-LGBT law does this.
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