In January, the Supreme Court signaled that the gay wedding wars may be reaching their final days. The court agreed to rule on whether bans on gay marriage — still on the books in more than a dozen states — are constitutional. That decision, which has the potential to make gay marriage legal everywhere, will be the last word on the issue for a while.
But the fight over gay rights continues in conservative corners of the country, where legislators are advancing laws that would, intentionally or not, ensure that gay people can be refused service, fired or evicted simply for being gay.
There are no national laws protecting against these forms of discrimination, so the matter has been left up to individual communities. A growing list of cities, for instance, are passing gay anti-discrimination ordinances, which has raised the ire of their more conservative state houses.
In this year’s legislative session, similar bills in several states are striking back against gay rights.
The proposed state laws fall into two categories. Some are anti-anti-discrimination measures that would prevent a state’s cities or counties from creating protections for gay people. A prime example is SB 202 in Arkansas, which became law Monday and will go into effect later this year. Arkansas and Tennessee are the only two states in the nation with such restrictions in place, which bar jurisdictions from exceeding state law on policing discrimination. Since both states allow gay discrimination, these laws require all their local communities to allow it, also.
In Arkansas, the town of Eureka Springs appears to be the only town with gay non-discrimination ordinances that would be struck down once SB 202 comes into effect. But the bill has spurred places like Conway and Little Rock to consider enacting such ordinances, as symbolic gestures and perhaps also as kernels for potential future lawsuits against SB 202. (UPDATE: Conway’s council passed a gay anti-discrimination ordinance protecting city employees last night.)
On Monday, legislators in West Virginia introduced a nearly identical version of the Arkansas law. HB 2881 would roll back gay discrimination protections across the state, affecting towns like Harpers Ferry, Morgantown, and Charleston, the capital, all of which have LGBT anti-discrimination ordinances on their books.
This also comes after the five-person town of Thurmond, W.Va., voted unanimouslyFeb. 9 to protect LGBT people from discrimination. “The big message was just, from the smallest town to the biggest town, West Virginians believe in equality,” one of the townspeople told The Post.
In another, more classic category are laws that would protect people who discriminate against gay people on religious grounds. There has been tremendous legal murkiness concerning when and in which contexts religious rights trump gay rights. These religious freedom bills would have religious rights triumph, always.
Yesterday, Indiana’s Senate passed SB 101, a broadly written bill that would shield anybody from laws infringing on the practice of their religion.
The bill’s authors argue that it is not an anti-LGBT law, but SB 101 has alarmed gay rights groups. They say the law would permit anyone to discriminate against gay people.
“We have seen this over and over — bills that say they are about protecting one thing when the real goal is to target and discriminate against LGBT people, with vast implications for everyone else,” Lambda Legal declared in a news release yesterday.
In Georgia, two very similar religious freedom bills were introduced in mid-February and they are currently in committee. Former Georgia attorney general Michael Bowers recently gave a venomous assessment of both. Not only are the bills “unequivocally an excuse to discriminate,” he wrote in a brief obtained by the Atlanta Journal-Constitution, but they also give broad license for anyone not to follow the law if they say it violates their religious beliefs.
“It is not just bad public policy; it is ill-conceived, unnecessary, mean-spirited, and deserving of a swift death in the General Assembly,” he wrote.
It’s an ironic turn for Bowers, who in the 1980s argued — and won — a landmark Supreme Court case upholding Georgia’s anti-sodomy statute. Lawyers today tend to regard Bowers as one of the worst decisions ever made by the court, and it was overturned 17 years later in Lawrence v. Texas.
Bowers wrote the brief for Georgia Equality, an LGBT rights group, who hired him to give his legal opinion on the bill. He told the Atlanta Journal-Constitution that despite the pivotal role he played in denying gay rights in the 1980s, he believes these religious exemption bills are terrible. “This isn’t about gay marriage,” he said. “It’s not about religious freedom. It’s about the rule of law. And I feel really, really strongly about it. And it doesn’t take a rocket scientist to tell you it’s a disaster.”
In Arkansas, the religious freedom bill HB 1228 passed the house and is under review by the Senate judiciary committee. The Presbyterian and Episcopal churches in the state have both come out against the measure.
“We must not legally empower dangerous rhetoric into action so that some religiously minded individuals might feel justified in their treatment of homosexuals and others who differ from themselves,” the Presbytery of Arkansas said in a statement to the Arkansas Times.
In North Carolina, where gay marriage was legalized in October, lawmakers are proposing a narrower bill that would let government officials refuse to perform marriages or issue marriage licenses if they have religious objections. Yesterday, SB 2 advanced in the Senate on a 32 to 16 vote.
But bills like the one in North Carolina tend to be the exception. Broadness is a theme in most of the current anti-gay legislation, which may in part be a strategy to defend against legal challenges. The Supreme Court has tended to be skeptical of laws that target a specific group, so many of these bills speak only in the most general terms.
The vagueness can have unintended consequences. In January, a Republican state senator in Texas introduced a bill that would strip a vast array of powers from local jurisdictions. Unlike the anti-anti-discrimination laws in Arkansas and Tennessee, SB 343 does not limit itself to discrimination laws. It would prohibit any local government from having a law or regulation that is “more stringent that a state statute or rule.”
“The bill aims to curtail local laws that hinder free enterprise and businesses or hamper liberty, counter to the free market, limited government policies enacted by the state,” Sen. Don Huffines’s spokesperson told the Texas Observer.
Under any reasonable reading of SB 343, the bill would make it extremely difficult for counties and towns to pass laws, and hamper local control. Concern about the loss of local control was one reason that Arkansas Gov. Asa Hutchinson declined to sign that state’s anti-anti-discrimination bill, SB 202, which became law without his signature. (Hutchinson also refused to veto the bill.)