The Washington PostDemocracy Dies in Darkness

The Supreme Court might legalize gay marriage. But that won’t stop opponents from pushing anti-gay laws.

How the religious right will regroup no matter what the court does.

Gay marriage supporters in front of the Supreme Court (Reuters/Joshua Roberts)
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After oral arguments last month at the Supreme Court in the historic marriage equality case Obergefell v. Hodges, many legal observers agree that the court appears poised to strike down the remaining state bans on same-sex marriage in June. And what we saw in the weeks prior with discriminatory legislation in Arkansas and Indiana — a media spectacle which included large corporations and prominent celebrities speaking out and forcing Republican governors to backtrack — gave many people hope that religious-right forces have been beaten back.

But opponents of gay rights, through trial and error, did pretty well in the past year, and even within the past months. No matter what happens at the court, they’ll continue, recalibrating, hoping to get it just right.

[Supreme Court hears arguments in historic gay-marriage case]

Even if marriage equality comes to all 50 states in June, after all, gay, lesbian, bisexual and transgender people still won’t be protected against discrimination in housing, employment and public accommodations under the 1964 Civil Rights Act, nor under any federal statute, a sad reality that often surprises people. There are no statewide protections in 29 states. Which means that in some states, gay and lesbian individuals have exercised the right to marry one day, only to be fired from their jobs the next after their employers learned about it. Opponents of LGBT rights have been working to keep anti-discrimination laws from being passed as well as exempt themselves from any such laws that do pass.

While researching a book, I’ve attended the Conservative Political Action Conference and the Values Voter Summit for the past few years, two conferences that provide a laboratory for right-wing attempts to blunt gay rights, and where the contours of the backlash against same-sex marriage become visible. At a panel discussion at the Values Voter Summit last September, conservative political strategist Frank Schubert, the mastermind behind many gay marriage bans in the states, including California’s Proposition 8 (which was ruled unconstitutional in 2010 by a federal judge), and Brian Brown, president of the National Organization for Marriage, the primary group battling same-sex marriage, pondered what opponents would do if the Supreme Court rules in favor of marriage equality.

Schubert said they would have to find a political strategy to stop progress on gay rights that was akin to the concept of “partial birth abortion” and its impact on abortion rights. Which gives some clues about the strategy. “Partial birth” abortion is not a scientific or medical term; it was created by abortion opponents to appeal to a wider swath of the public. The term is used to refer to a specific late-term abortion procedure — known as intact dilation and extraction — that has been rarely performed, accounting for .17 percent of all abortions in 2000. Nonetheless, after almost a decade of pressure, advocates were able to get Congress to pass the Partial-Birth Abortion Act in 2003, which President George W. Bush signed, and which was upheld by the Supreme Court in a 5-4 decision in 2007. It was yet another way of chipping away at abortion rights, reframing the discussion and tapping into discomfort about abortion even among some who view themselves as “pro-choice.”

In making the comparison, Schubert meant that conservatives would have to look for an issue that could help reframe the argument over gay rights and tap into discomfort about homosexuality — or about infringing upon religious freedoms — even among those who wouldn’t otherwise want to discriminate against gays.

Later, he told me in an interview that if the Supreme Court rules for marriage equality, opponents’ strategy, “in a broad sense [will be] be similar to the pro-life movement after Roe v. Wade – regrouping, looking at trying to change the culture…and of course religious liberty issues will be very much in the crosshairs.” An example of the gay marriage version of a phrase like “partial birth” abortion, he said, would be “protecting the right of a believer in traditional marriage from being punished from the government,” and another example would be “conscience protections,” which are policies that allow religious believers to opt-out of certain duties of their jobs that violate their beliefs.

Opponents of gay rights often rely upon rebranding and re-wording laws after they fail in order to get them passed. Saying bills to allow discrimination are really about “restoration” of religious “freedom” reframes the argument as that of a struggle to bring back something that has been lost. They also strategize to pass the laws under the radar while the national media, big business and activists aren’t paying attention. They’ve had some big failures. But they’ve also had some stealthy big wins.

When Arizona legislators passed a “religious freedom” bill last year, for example, the national media descended on the state, as local corporations spoke out against the idea and the National Football League hinted at pulling the Super Bowl out of Phoenix. Gov. Jan Brewer (R) vetoed the legislation. But weeks later, with less attention in the national press, a more carefully worded Religious Freedom Restoration Act (RFRA) was passed in Mississippi, which the American Civil Liberties Union warned could allow businesses to turn away gays. Mississippi’s governor signed it. The Family Research Council’s president, Tony Perkins, praised it, saying a “wedding vendor whose orthodox Christian faith will not allow her to affirm same-sex marriage” would have the right not to serve gay or lesbian couples under the new law.

This year, in late February, just a few weeks before RFRA bills in Indiana and Arkansas drew widespread criticism, Arkansas’ legislature had also passed a much more draconian statute that essentially banned any local gay rights ordinances from being passed anywhere in the state. The law says only groups that have statewide protections from discrimination — and gay, lesbian, bisexual and transgender people do not — may be protected under local ordinances. Because it doesn’t name gays as a group, some legal experts believe it could withstand court scrutiny. (In response, both Little Rock and Hot Springs recently passed ordinances limited to banning discrimination against gay and transgender public employees and employees who work for businesses contracted with the cities; local officials believe these limited ordinances don’t conflict with the new state law.)

Wal-Mart, the retailing giant headquartered in Arkansas that spoke out quickly and strongly weeks later against the RFRA there, was silent until the very last minute on this bill, which Gov. Asa Hutchinson (R) quietly allowed to become law without his signature. (A bill in Arkansas automatically becomes law if the governor doesn’t sign or veto it in five days..) There was little national coverage, and hardly any outrage over a law that essentially banned equal protection for gay and lesbian Arkansans. FRC’s Perkins called the bill a “model” for other states.

With a law like that already on the books, any business in Arkansas that wanted to discriminate against gay patrons would have been free to do so, with or without the religious freedom bill. Indiana also has no statewide protections for gay citizens. Except for the few cities with local ordinances that ban discrimination, gay and transgender people can be turned away from businesses or fired from their jobs in Indiana because of their sexual orientation or gender identity.

Lately, the battle has shifted to the Louisiana legislature, which was debating the Marriage Conscience Act, which, if passed and signed by Gov. Bobby Jindal (R) — who has exuberantly expressed support — would protect businesses that deny service “in accordance with a religious belief or moral conviction” about marriage

This is yet another reworking and fine-tuning of legislation, trying to tap into the sentiment of a broader public, and, in the case of the Louisiana bill, specifically applying the law to florists, bakers, photographers and others. All of these bills are taking advantage of an odd split in public opinion on just how many rights people really want gays and lesbians to have. When asked if businesses should be able to discriminate based on sexual orientation, polls show a majority, of Americans are opposed. But when asked if a wedding-related business should be able to refuse service to a gay wedding based on the owners’ religious beliefs, a recent Associate Press poll found 52 percent said yes.

Whether this backlash against LGBT equality will be as successful or as ongoing as the decades-long backlash against women’s rights is unclear. But what it is clear is that LGBT activists need to redouble the fight, not only in the states but at the federal level, where what would help most would be amending the 1964 Civil Rights Act or passing a similar bill protecting LGBT people in all areas, from housing and education to employment and public accommodations, with no broad religious exemption. They should be pressuring 2016 presidential candidates, starting with Hillary Clinton, to promise to make this a priority. And certainly they shouldn’t be declaring victory for LGBT rights, no matter what the Supreme Court does in June.

CORRECTION: This post originally incorrectly stated that 29 states had full legal protections for gay and lesbian residents; in fact, 29 of them have no statewide protections.