Conservative lawmakers in states nationwide are pushing to expand the right of individuals and businesses not to provide certain services to same-sex couples on religious grounds.
In North Carolina, for example, a state legislator has proposed allowing government workers to recuse themselves from issuing marriage licenses to same-sex couples, though such unions are now legal. A bill in Texas would permit voters to amend the state constitution in a way that supporters say would enhance religious liberty but critics warn would harm the civil rights of gays and others.
A legislative fight is underway in Michigan, where the state House recently passed a set of contentious religious-liberties bills, including some that would allow adoption agencies to refuse placements that violate their faith.
The wave of proposed legislation comes at a time of major gains for the gay community, with same-sex couples now allowed to marry in 35 states and the District of Columbia. The rapid shifts in the legal landscape have sparked a backlash from religious conservatives, who say the gains have gone beyond helping gays and are now infringing on the rights of those who oppose same-sex marriage for religious reasons.
A number of small-business owners around the country, such as bakers and photographers, have been fined or otherwise penalized for declining services to same-sex couples seeking to marry.
“As more states have marriage that includes two men or two women, more people are going to be confronted with a decision: Do I follow my conscience, politely decline to participate in a same-sex celebration and be punished? Or do I surrender my freedom to live and work faithfully at the government’s command?” said Greg Scott, spokesman for Alliance Defending Freedom, a conservative legal group that is advising state legislatures and represents about half a dozen business owners.
Groups on both sides of the issue are preparing for more battles next year, after most states open their legislative sessions. In anticipation of further bills, gay-rights groups have begun pushing back, hiring lobbyists and telling local chambers of commerce that the legislation could damage the states’ reputations.
Business opposition was critical to the failure earlier this year of a similar measure in Arizona that critics had dubbed a “right to discriminate” bill.
That measure, which would have allowed businesses to refuse service to gays on religious grounds, passed the state Legislature but was vetoed by Gov. Jan Brewer, R-Ariz., after a significant backlash, including from the National Football League, which had suggested it might move the Super Bowl out of Arizona in 2015.
Critics of the bills say they could set far-reaching precedents. For example, they caution, a man charged with domestic violence could argue that it is part of his religion to keep his wife in line or a taxpayer-funded homeless shelter could be permitted to turn away a Muslim family.
They argue, however, that gay and transgender people are the primary targets of these bills, and that the lesbian, gay, bisexual and transgender community is particularly vulnerable because many states do not explicitly ban discrimination against them.
James Esseks, director of the LGBT and AIDS project at the American Civil Liberties Union, said that forces that oppose gay rights and were unable to stop the legalization of same-sex marriage in the courts and statehouses have turned to a new strategy. They are “using religious-freedom arguments in an effort to justify anti-gay discrimination because they want to ensure LGBT equality doesn’t affect them,” he said.
Supporters of the measures say they are being mischaracterized. They argue that many of the religious-freedom bills are not being introduced as a result of recent gay-rights gains but rather are a continuation of a trend that began in 1997, when states began passing so-called Religious Freedom Restoration Acts.
Nineteen states have adopted versions of this religious-freedom law. The initial wave was a result of a pair of U.S. Supreme Court decisions, including one upholding a state decision to deny unemployment benefits to two Native Americans who were fired for using peyote as part of a religious practice. The decision led to bipartisan support for state and federal laws aimed at preventing the government from substantially burdening a person’s free exercise of religion.
But many of those supporting the more recent religious-freedom bills acknowledge that current events play a part in their thinking. They point, for instance, to the requirement under President Barack Obama’s health-care initiative that some employers provide contraception without co-pays through their employee health plans.
They also have been emboldened by the high court’s decision in the Hobby Lobby case earlier this year, ruling that certain businesses may opt out of the contraception mandate if complying would conflict with their religious beliefs.
Michigan House Speaker James “Jase” Bolger, (R), said his state’s version of the Religious Freedom Restoration Act, which he introduced this year, would not give domestic abusers the right to beat their wives, nor would it allow restaurant owners the right to reject gay customers, despite what critics have said.
Rather, he said, it would offer important new protections – for example, giving a Jewish couple the religious grounds not to allow an autopsy of their son’s body after an accidental death if it was considered an unnecessary desecration of the body.
But he said he also was compelled by the stories of business owners who have been punished for declining to participate in same-sex weddings, such as the couple in Upstate New York who provided their barn to gay couples for receptions but balked when asked to host a same-sex wedding ceremony. The couple was fined.
“I have been stunned at the number of Americans arguing that the only place people can practice their religion is while they’re hiding in their homes and hiding in their churches, and once they leave their home and their church they are not allowed to practice their religion,” Bolger said.
Although the Michigan bill easily passed the House, the Senate has yet to take it up, and the legislative session ends Thursday.
In Texas, a state senator has pre-filed a bill for next year aimed at amending the state constitution. If successful, voters would be asked next fall whether they favor enshrining a version of the state’s existing Religious Freedom Restoration Act in the state constitution.
Scott Hochberg, a Democrat, a former state legislator who wrote the state’s original Religious Freedom Act, said it would go further than shoring up current law, changing it so that religious liberties would supersede civil-rights protections.
Hochberg said he is convinced that the effort is motivated by anti-gay sentiment. “But rather than go at it directly, they’re trying to cover that with the use of religion, which I think is a pretty cynical use of someone’s sincerely held beliefs,” he said.