The passage of religious liberty laws in Indiana and Arkansas has put Republican governors on their heels, forcing them to explain -- mostly without success -- that the laws are not a license to discriminate against the marriage rights of same-sex couples. Backpedaling awkwardly when the measures generated calls to boycott their states, both governors sent legislators back to the drawing board to make clear that the laws do not sanction sexual orientation discrimination.
The laws -- or Religious Freedom Restoration Acts -- are made possible by an unholy alliance between the religious right and mainstream liberals. Conservatives want to be sure they aren't forced to recognize same-sex marriages once they become legal, and some liberals -- including in the legal academy -- maintain that the measures are harmless because no entity has ever won when challenged by a gay couple that has been denied service under an RFRA. The liberal defenders of RFRAs such as Doug Laycock, a professor of law at the University of Virginia, say worries about discrimination against gay men and lesbians perpetuate a "big lie" about the laws' reach and impact. "These wild discrimination hypotheticals are so far just that: wild hypotheticals," one such scholar said. "Show me a case. It just hasn't happened."
One reason we haven't seen very many of these cases is discrimination against gays and lesbians is perfectly legal in all of Arkansas and most of Indiana. In these states, employers, business owners and landlords are free to discriminate on the basis of sexual orientation, and thus don't need a religious-liberty justification to do so. In other words, there's nothing broken that the state RFRAs are fixing. Rather, these laws affirmatively reinforce and solidify in law a discriminatory status quo.
The liberal defense of state RFRAs misses the stakes here entirely. Counting the number of cases in which a photographer, a baker or a florist seeks a religious exemption from serving a same-sex couple ignores the real impact of these broadly worded laws. While the protection of religious liberty is an important American value, the radical breadth of these laws exceeds even our most felicitous accommodation of religion in our constitutional history.
The harm these laws inflict won't necessarily materialize in litigation. Instead, it will foster, intensify and validate "a climate of the closet." In a climate in which religious values are publicly legitimized as more important than a wide range of secular values, gay people will deploy well-worn tactics of masking, hiding and secrecy. We are well-trained masters of deception: not holding hands in public, not sitting too close in a waiting room, not holding a gaze too long at a restaurant, not mentioning home life at work, and having half of a couple go in to register at a hotel or inn when asking for a room with a double bed. Throughout the country, there are lesbian and gay couples living together under false pretenses, telling coworkers and members of their church that their partner is a distant cousin from up north, or out east.
We use these tactics not just to get around a florist who won't sell us flowers, but as a rational response to systemic discrimination -- to the risk of losing our jobs or our homes, or, worse, suffering physical violence. Sure, there may be some lawsuits filed when a shopkeeper refuses service to an out gay or lesbian couple. But the insidious and more widespread effects of these statutes are the homophobia they license in the name of religion and the closeting tactics gay men and lesbians will surely adopt in response.
The RFRAs in Indiana, Arkansas and ten other states are a strategic -- and preemptive -- backlash by the religious right against the anticipated U.S. Supreme Court's recognition of a constitutional right to marriage for same-sex couples. Call it a "firebreak," the term firefighters use for a man-made barrier constructed to slow or stop the progress of a wildfire. It's not particularly surprising that conservatives would endorse these bills. Yet, the nonchalance of liberals toward these measures comes as a betrayal to the LGBT community whose rights they say they support. Their endorsement of overly broad religious liberty laws like those in Indiana and Arkansas gives cover to a kind of hateful venom that disguises its bite in a shroud of religion. While these colleagues are busy threading the narrow eyes of constitutional legal needles, we're preparing to re-don our straight faces and straitjackets.
Katherine Franke is the Faculty Director of the Public Rights/Private Conscience Project at Columbia Law School
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