After coming off a couple years of strong LGBT-equality wins, the LGBT community is dazed and confused with loss after loss at the polls and in state legislatures. In the last two months, we’ve witnessed a wave of anti-LGBT bills filed by state legislators across the country aimed at enshrining LGBT discrimination under the guise of religious liberty.
As of this week, more than 100 anti-LGBT bills have been filed in 29 state legislatures, effectively rolling back so much of the progress we’ve made in the last several years — and all in the name of religion.
What makes religious-freedom laws difficult to fight against is that they are intentionally vague. Critics say that, in recent years, politicians have championed RFRAs precisely for their ambiguity, not in spite of it. RFRAs allow legislators to affect issues from a safe distance. The law instructs judges to take religious rights more seriously, but doesn’t tell them how to rule. Anti-LGBT advocates can hide behind a RFRA screaming at the top of their lungs that they are not discriminating but just restoring religion’s place in society.
Let’s take a look at just a few of the “non-discriminatory” laws that have been passed recently.
Obviously, we have to start with Arkansas and Indiana’s RFRA, which stole the show so far this year. Both states sought to beef up their RFRA with extra clauses including “companies” in the definition of a “person” that is allowed to refuse people service, and providing companies and people a defense against discrimination in a court of law whether or not a government actor is involved. After national outcry by the CEOs of Fortune 100 companies, celebrities and neighboring states, an amendment was passed that bars businesses and individuals from using the law to refuse employment, housing or service to people based on their sexual orientation. There are currently 21 states with RFRAs in place, but Arkansas and Indiana’s are the first of many that will be including these extra clauses, embedding the ability to discriminate into state laws.
Last week, the Florida House of Representatives voted 75-38 to pass a bill (HB 7111) that would allow the state’s adoption agencies to engage in any kind of discrimination if serving a particular family violates its “religious or moral convictions or policies.” The state contracts with several private agencies to manage its child-placement services, some of which are religiously affiliated. Under the bill, the state could not revoke a license, nor refuse any funding to these agencies, based on their decision not to place children with certain families.
In Springfield, MO, the state’s third-largest city, voters repealed an LGBT-inclusive non-discrimination ordinance. The vote in Springfield drew passionate campaigners on both sides, pitting Christians— worried that their faith was being steamrolled— against supporters of LGBT rights, echoing recent political battles over religious-freedom restoration laws in Indiana and Arkansas. It was a close vote but LGBT rights lost yet again: With more than 97 percent of the votes tallied, 51.4 percent of voters opted to repeal the ordinance, while 48.5 percent voted to retain the measure.
Even Guam is getting in on the action. Two women in Guam who have been together for 28 years were denied a marriage license. Because Guamanian law restricts marriage to opposite-sex couples, many same-sex couples have flown to Hawaii and even to continental states on the West Coast rather than challenge the law on their home island. The women filed a lawsuit against the Department of Public Health and Social Services’ Office of Vital Statistics; their argument is, since the Ninth Circuit Court of Appeals has jurisdiction over that court and has previously ruled in favor of same-sex marriage, they should be entitled to marry as well. Guam’s attorney general agrees and directed officials to immediately begin processing same-sex-marriage applications, putting the island on course to be the first U.S. territory to allow gay marriage. But Leo Casil, the acting director of the Department of Public Health and Social Services, said that government officials won’t accept applications “until further notice.” As his basis for not complying with the attorney general, Casil pointed to the fact that he simply received a letter, not a legal opinion.
And then there’s Louisiana. I don’t know how they have managed to avoid the corporate and political backlash that Indiana and Arkansas suffered but, so far, they have. Governor Bobby Jindal (R), a possible 2016 presidential contender, following on the heels of contentious religious-freedom bills in Indiana and Arkansas, supports his state’s Religious Freedom Restoration Act. And whereas Indiana and Arkansas had versions of RFRA, which included broad language that critics have said could have unintended consequences, Louisiana is amid passing a “Marriage and Conscience Act.” The act is more focused and deals specifically with religious beliefs in relation to same-sex marriage, making it more difficult for opponents to beat back. It explicitly and sweepingly excludes and stigmatizes same-sex couples. Under the act, employers could deny same-sex spouses marriage benefits; licensed professionals could refuse services to same-sex couples; state contractors could refuse to hire gays and lesbians; and even state officials — such as judges — could refuse official recognition to same-sex marriages.
To me, Louisiana’s bill is actually worse than other states’ versions because it explicitly allows discrimination based on an individual’s religious beliefs about marriage. Nobody gets to go into court for a balancing test; there’s no interpretation by a state judicial system. It flat-out gives individuals a right to discriminate.
I worry that the LGBT community has become complacent after the slew of victories we’ve enjoyed. Even more, I’m concerned that the new generation of LGBT young people and their allies won’t have their guard up and won’t be as incensed as previous generations to keep fighting for our rights. Bigotry disguised as religious liberty is still bigotry, and the next few decades will be an unfortunate battle between people attempting to preserve their religious liberties and others attempting to gain equal rights under the Constitution.
Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com and she maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Send Angela your legal questions at [email protected].