How long will state legislative battles over religious freedom and marriage rights continue?
Posted April 16, 2016
Last year, the four Supreme Court justices who dissented in the landmark ruling legalizing same-sex marriage predicted an unsettled future for people on both sides of the issue.
They argued that the court's decision would create, rather than resolve, conflict because it redefined marriage without addressing the implications for religious freedom. They suggested that the battle was only beginning both for faith groups who oppose same-sex marriage on religious grounds and members of the LGBT community who demand equal protection under the law.
In the 10 months since the dissenting justices issued their warning, more than 100 religious freedom bills have been filed in state legislatures. The measures respond to the longstanding tension between same-sex marriage and conscience rights by proposing protections for faith leaders, religious organizations or small-business owners who say serving same-sex couples would force them to violate their beliefs.
Although the legislative response to the court's ruling in Obergefell v. Hodges has been swift, the fallout will take years to resolve, according to legal experts, as lawmakers and advocates evolve from a winner-take-all approach to one of compromise.
"We need more people in the middle helping us to be judicious about what are the real risks to religious beliefs and what are not real," said Robin Fretwell Wilson, a director of the Family Law and Policy Program at the University of Illinois College of Law.
Repeating the past
The religious freedom bills circulating through state legislatures this year have come in many forms. Some, like HB1523, which the governor of Mississippi signed into law Tuesday, propose broad protections for people of faith who believe marriage is only proper between one man and one woman. Others are more specific, singling out professionals like therapists, government workers or clergy members for exemptions from serving same-sex couples.
These bills are a natural reaction to the surge of cultural change sparked by the Supreme Court's ruling in June, said Ryan Anderson, who regularly writes on religious freedom legislation as a senior research fellow at The Heritage Foundation. Many state-level protection bills were also proposed in the aftermath of the court's 1973 Roe v. Wade ruling, which legalized abortion across the country.
"Roe v. Wade created the right to abortion, but also the right not to perform an abortion or pay for an abortion," said Anderson, whose book, "Truth Overruled: The Future of Marriage and Religious Freedom," was published in August 2015.
After the Supreme Court's ruling, every state but Alabama, New Hampshire and Vermont eventually passed laws creating conscience protections for health care providers who object to abortion.
State-level legislation helps the people who oppose the Supreme Court's rulings on these contentious issues accept the change, Wilson noted.
"Abortion conscience clauses had a tempering effect at the time," she said. "They were important ways to move forward with everyone living together in peace."
However, the potential impact of the same-sex marriage ruling is much broader than the impact of Roe v. Wade, which threatened the licenses or tax status of religiously affiliated health care providers who refused to participate in the procedure, she explained.
Marriage law affects a much larger group of individuals and businesses, complicating efforts to use religious freedom bills to temper what some view as a disturbing cultural shift. Additionally, the states considering these laws have faced unexpected backlash from national corporations and even other states.
"Here you have the (legal ramifications of Roe v. Wade) on steroids," Wilson said.
Even before the high court's Obergefell v. Hodges ruling last year, states like Maryland, New Hampshire and New York, which legalized same-sex marriage through legislation, acknowledged that adjustments to marriage laws need to be accompanied by accommodations for religious objectors.
"(Policymakers in these states) said, 'If we're going to redefine marriages, we're going to create protections at the same time,'" for groups like faith-based charities or adoption agencies, Anderson said.
In early 2015, Utah lawmakers, at the urging of leaders of The Church of Jesus Christ of Latter-day Saints, anticipated the high court's ruling and codified religious exemptions to non-discrimination laws. They also passed a bill ensuring gay couples can get a marriage license while excusing clerks who didn't want to perform the duty for religious reasons.
Policymakers in all these states invited everyone to the table to work on a compromise, a step that's been largely ignored in the wake of same-sex marriage legalization, said Wilson, who has worked with dozens of state lawmakers in negotiating religious protections to gay marriage laws.
"A lot of these (recent) legislatures feel like they need to put points on the board and show (religious) people they've got their backs," she said, arguing that the mindset leads to lopsided bills that provide protections to no immediate threat.
"If you don't have a local or state law that requires you to serve people, there's nothing to respond to and nothing to protect people from," Wilson said.
But Anderson contends that legislatures are also right to move forward with these bills this year, highlighting the importance of staking out religious freedom protections in the current political landscape.
"What is the problem with saying we're never going to allow the threat to come?" he said.
One problem has been the unexpected blowback by national corporations expressing concern how these bills will impact their LGBT employees and customers. Companies like Disney, Apple and PayPal have criticized religious freedom measures in Georgia, North Carolina and other states, threatening to take their business elsewhere and, in PayPal's case, actually doing so.
Tim Schultz, president of the 1st Amendment Partnership, an organization that works with faith communities to pass religious freedom legislation at the state level, noted that this level of political involvement is unprecedented.
"For issues like guns, abortion, immigration, we don't see major, multi-national corporations involved in state-level legislation," he said.
These businesses are raising the stakes by forcing policymakers to consider the economic consequences of pitting religious liberty against other rights.
Pressure from big businesses has led to high-profile vetoes, such as when Georgia Gov. Nathan Deal, a Republican, declined to sign HB757 in late March rather than jeopardize Atlanta's bid to host the 2019 Super Bowl. The National Football League blasted a bill as discriminatory that would have allowed religious officials and others who provide marriage services to refuse to work with same-sex couples.
"Most of the controversy (created by businesses) doesn't have to do with the content of the legislation. It has to do with social atmospherics," Schultz said. "I doubt corporations like Disney have any sense of the actual content in these bills. They know LGBT groups don't like them, so they don't like them."
Schultz added, "That's part of what makes this more challenging."
Contentious battles over state-level religious freedom protections also affect public perception of religion's First Amendment protections, which used to unite people across ideological differences.
Although six-in-10 Americans (60 percent) say that religious liberty is declining in the U.S., 43 percent of U.S. adults believe Christians complain too much about how they're treated, according to a new LifeWay Research survey.
Without broad public support, bills are more likely to die in the Legislature or be vetoed by governors, which Wilson described as a troubling trend in 2016.
"My fear is that with policy by veto you get legislatures pushing and governors pulling back," she said. "The good stuff gets trashed along with the bad."
The situation also increases tension between conservative and liberal lawmakers, which is unfortunate because religious freedom used to bring people together, Schultz said.
The 1993 Religious Freedom Restoration Act was passed unanimously by the U.S. House of Representatives and near-unanimously by the Senate, but today's Democrats are much less likely than their predecessors to support even state-level RFRAs, he noted.
"In 2013, two states passed RFRAs, Kansas and Kentucky. … Sixty-seven percent of the Democrats who voted, voted in favor of those laws. In early 2015, five or six states voted on RFRA laws and support from Democrats dropped to 11 percent," Schultz said.
Erik Fleming, director of advocacy and policy for the American Civil Liberties Union of Mississippi, said the lawmakers who crafted HB1523 didn't reach out to his organization for input. The law will prevent the government from retaliating against — for example, by withholding tax benefits from — religious organizations that refuse to perform same-sex marriages, counselors who won't take on gay or transgender clients and wedding-related businesses that won't service same-sex couples.
"If we had the chance, we would have joined the conversation," he said, noting that the ACLU wouldn't have opposed exemptions for religious groups if they could ensure that the LGBT community wouldn't face discrimination as a result.
However, Fleming said compromise is still an option moving forward, as his organization advocates for increased protections for the LGBT community.
"Despite feelings that may be hurt … no bridges should be burned," he said. "Our (legislation) will go through the same legislature."
Neither the bill’s sponsor nor a spokeswoman for the Mississippi House would immediately comment on the negotiations of HB1523.
The one-sided responses to same-sex marriage produced in the current divisive political landscape are doomed to fail either legislatively or in the courts, said Wilson.
But Schultz said these failures may hold the key to future progress.
"One of the things that brings people together is, unfortunately, failure. (Compromise) tends to proceed after both sides have seen their efforts to impose their wills fail. They decide it would be better to seek common ground than to continue to fight fruitlessly," he said.
Schultz predicted that within 10 years, there could be a federal law passed in response to the legalization of same-sex marriage, which would clarify the rights of individuals and businesses that believe marriage should only be between one man and one woman.
In the meantime, state-level legislative efforts will continue, because the gaps that exist there between members of the two parties are less daunting than those in Washington, D.C., he added.
"There is persistent gridlock at the federal level," Schultz said. "In the near-term, you're going to see these issues play out more often and with more publicity in the states."
Wilson proposed a shorter timeline for federal intervention, suggesting that Congress could construct a compromise in around five years.
"I think we can come to a stable social contract around these issues fairly quickly if there's a federal equality act," she said.
However, it's also likely for the trends that have emerged this year to overwhelm the process, Wilson noted.
"The flip side of (a new federal law) is this string of vetoes putting the skids on the good religious protections along with the bad. Then you might come to a new norm very quickly and I think it would be a destructive one," she said. "If policy by veto is going to be the net record of this year, (advocates for religious freedom) may have managed to defeat and set back religious liberty and not advance it."
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