Move over Federal Marriage Amendment: anti-gay forces are focusing on new ways to halt the advancement of marriage equality — and the result could limit marriage rights for gay couples across the country.
As more states legalize same-sex marriage and efforts to pass a U.S. constitutional amendment prohibiting it have faded, the focus has shifted to containing federal recognition to marriage equality states and to advancing religious exemption bills allowing for discrimination against same-sex couples.
Outrage prompting calls for these measures was seen just last weekend when U.S. Attorney General Eric Holder announced he would extend federal recognition of same-sex marriages to programs under the Justice Department’s purview.
The changes were intended to comply with the U.S. Supreme Court’s decision last year against the Defense of Marriage Act. Among other things, they would allow married same-sex couples to file jointly for bankruptcy. In addition, spouses won’t be forced to testify against each other.
Mainstream and conservative media outlets jumped on the development — the Washington Post called the change “sweeping” — while anti-gay groups expressed outrage over Holder’s extension of these rights to same-sex couples in states without marriage equality.
Brian Brown, president of the anti-gay National Organization for Marriage, said Holder’s decision was the latest in a series of moves that “undermine the authority and sovereignty of the states” with respect to marriage.
“The American public needs to realize how egregious and how dangerous these usurpations are and how far-reaching the implications can be,” Brown said. “The changes being proposed here to a process as universally relevant as the criminal justice system serve as a potent reminder of why it is simply a lie to say that redefining marriage doesn’t affect everyone in society.”
To limit federal recognition of same-sex marriages to marriage-equality states, anti-gay groups are championing legislation in the U.S. House known as the State Marriage Defense Act, which would prohibit the federal government from recognizing a same-sex marriage in a state that doesn’t allow gay nuptials.
Tony Perkins, president of the anti-gay Family Research Council, voiced support for the State Marriage Defense Act immediately after Holder’s announcement.
“Attorney General Holder’ s announcement — like his recognition of same-sex ‘marriages’ in Utah despite the Supreme Court granting a stay of the District Court decision overturning that state’s definition of marriage — illustrates the importance of congressional action to pass the State Marriage Defense Act (H.R. 3829), introduced by Rep. Randy Weber (R-Texas),” Perkins said.
Neither the Family Research Council nor the National Organization for Marriage responded to the Washington Blade’s requests to comment on whether calls for this legislation represented a shift in focus away from the Federal Marriage Amendment.
Religious exemption measures emerge
Meanwhile, at the state level, new initiatives are emerging to establish carve-outs to civil rights and marriage equality laws to enable individuals or businesses to discriminate against LGBT people and their marriages on religious grounds.
One such initiative underway in Oregon is concurrent with Oregon United for Marriage’s work to bring the issue of marriage equality to voters on Election Day this year. Anti-gay groups are working to place on the ballot at the same time a measure to allow florists, bakers and other businesses to refuse to participate in these weddings on religious grounds.
Although it’s illegal in Oregon to discriminate on the basis of sexual orientation, the proposal would enable such business to discriminate against gay couples. To qualify for the ballot, anti-gay groups must submit 87,213 valid signatures of Oregon residents by July 3. That’s half the number required to place the marriage equality constitutional amendment on the ballot because the anti-gay measure would only be statutory.
Mike Marshall, Oregon United for Marriage’s campaign manager, told the Washington Blade the religious exemption ballot initiative is a big fear because it could have an impact on the marriage equality campaign.
“The other side knows that when we shift the debate away from love and commitment to protecting religious freedom that you see support go down for marriage three to four percent, and that’s within the margin of victory for us,” Marshall said. “Instead of putting their resources into defeating our campaign, they’re creating a second campaign to shift the focus of the debate, and by doing that, at least carve some level of discrimination that they engage in.”
Marshall said if the religious exemption measure passes, the LGBT community would be faced with similar measures in every state over the next 10 years.
Religious exemption measures are becoming more common in state legislatures. In Kansas, the state legislature approved on Wednesday by a 72-49 vote a bill that would allow state residents to refuse services to gay couples related to same-sex weddings. In Arizona, a House committee approved a broad religious freedom bill to allow individuals and the businesses they own to refuse to provide services based on their religious beliefs.
Similar measures have popped up in Idaho, Mississippi, Ohio, Oklahoma and Maine (although the Maine measure was recently voted down in committee). Measures specifically allowing discrimination against same-sex marriage and gay people, likes the ones in Oregon and Kansas, have come up in South Dakota.
Sarah Warbelow, state legislative director for the Human Rights Campaign, said passage of the bills could cause problems, such as allowing a county clerk to refuse to grant a marriage license.
“The state would still have to find someone to fill in, but it could make it more cumbersome for same-sex couples, not to mention hugely embarrassing,” Warbelow said. “No one should have to stand in line on the penultimate day of their marriage relationship only to find they have to go through a series of county clerks, one after another.”
The religious exemption measures aren’t exclusively found in the states. Rep. Raul Labrador (R-Idaho) in the U.S. House and Sen. Mike Lee (R-Utah) in the Senate have introduced legislation known as the Marriage and Religious Freedom Act, which would prohibit the federal government from discriminating against organizations that exercise “religious conscience” against same-sex marriage.
Rose Saxe, a staff attorney at the American Civil Liberties Union’s LGBT Project, said they’re meant to enable discrimination against gay couples seeking to wed in the states at a later point in time in anticipation of that ruling.
“But the ones that are explicitly anti-gay, we see those as as sort of ‘Plan B’ from the other side in the sense that they see marriage is coming and they’re trying to ensure that even in states where we don’t yet have marriage or robust non-discrimination laws that can preemptively enshrine the right to discriminate,” Saxe said.
Isolated anti-gay incidents driving new tactics
Movement on these bills comes in the aftermath of isolated situations where business owners were accused of acting wrongfully by refusing services for same-sex weddings.
One prominent such incident took place in Colorado, where a judge in December determined a Lakewood bakery known as Masterpiece Cakeshop acted unlawfully by refusing to sell a wedding cake to a gay couple.
A similar incident occurred in Washington State, where Arlene’s Flowers owner Baronelle Stutzma refused to sell flowers to a gay couple and is now facing a lawsuit from the state and couple’s attorney. In Vermont, a resort that was sued in 2011 for refusing to host a lesbian couple’s wedding reception agreed to settle by paying $30,000 in damages.
In addition to invoking the wrath of anti-gay groups, these situations sparked concerns among libertarian-minded supporters of LGBT rights on social media over the perceived unfairness of requiring a business to recognize same-sex marriage.
Saxe said the religious exemption measures have begun to “pop up with more frequency” before state legislatures in the wake of media coverage of these incidents.
“I think those stories are part of the justification,” Saxe said. “In both South Dakota and Kansas, we saw the supporters of this legislation saying that this was about protecting the rights of businesses to not provide wedding services, but then the bills themselves…said any person could refuse to respect any marriage, which is not all about wedding services.”
The majority of the American public opposes making exemptions to accommodate these situations. According to a poll last year conducted by the Human Rights Campaign and the Third Way, 67 percent of voters are opposed to laws that allow businesses to discriminate against gay couples based on religious objections. Further, 56 percent of respondents thought it was already illegal for business owners in their state to refuse service to someone for being gay, although 30 percent were wrong because no such law exists in their state.
It’s also possible that the U.S. Supreme Court could take up a case related to one such isolated objection to a same-sex wedding and issue a sweeping decision enabling discrimination against same-sex couples.
Pending before the U.S. Supreme Court is the appeal of a decision by the New Mexico Supreme Court in the case of Elaine Photography v. Vanessa Willock, which found that the husband-and-wife owned photography business violated New Mexico’s civil rights law by declining to shoot Willock’s commitment ceremony in 2006, even though it was over religious beliefs. (Same-sex marriage at the time wasn’t yet legal in New Mexico.)
Anti-gay groups late last year filed an appeal to the U.S. Supreme Court on the basis that the New Mexico court decision violated Elaine Photography’s rights under the First Amendment’s ban on compelled speech.
Jon Davidson, legal director at Lambda Legal, said he thinks it’s “less likely” the court will take up the case because petitioners asked for a review of rejection of the photographer’s “compelled speech”and not free exercise of religion.
“Given this narrowing of the issue presented, I think it is somewhat less likely that the Supreme Court will grant review, because the issue presented affects fewer people and entities than a religious freedom claim would,” Davidson said.
Although it’s hard to say what action the Supreme Court will take, it may issue writ of certiorari to take up the case this year. If so, a decision would be expected before the court adjourns in June.
CORRECTION: An initial version of this article incorrectly reported the number of signatures to place the anti-gay measure on the ballot in Oregon. The Blade regrets the error.