Amid a series of court rulings in favor of marriage equality, anti-LGBT forces are responding in state legislatures with bills that would allow discrimination to continue against same-sex couples.
The introduction of these bills — which range from allowing businesses to refuse services to same-sex couples to cutting off funds for the purposes of granting marriage licenses — comes as many conservative states are facing the reality of marriage equality delivered through court order and as the U.S. Supreme Court is set to deliver a nationwide ruling on the issue later this year.
Many of these bills, named Religious Freedom Restoration Acts, have the stated purpose of prohibiting the government from burdening an individual’s exercise of religion except to achieve a compelling interest, and only if that burden is the least restrictive means of reaching that interest.
But the wording in such legislation is seen as a thinly veiled attempt to enable discrimination by allowing businesses, such as florists and bakeries in the wedding business, to refuse services to same-sex couples, or by allowing court clerks to refuse to issue them marriage licenses.
Eunice Rho, advocacy and policy counsel for the American Civil Liberties Union, said the bills are problematic not only because they would allow discrimination against LGBT people, but also because they are constitutionally suspect.
“Some of these bills single out same-sex couples for discriminatory treatment, and we believe that poses a potential constitutional problem,” Rho said. “But it also obviously violates the principle that you’re being paid by the public, you’re being paid by taxpayer dollars, you should be serving all taxpayers.”
The center stage for these bills is Oklahoma, where lawmakers have introduced no fewer than eight pieces of anti-LGBT legislation at the start of the 2015 legislative session. Marriage equality became legal in the state as a result of a decision striking down the state’s ban on same-sex marriage from the U.S. Tenth Circuit Court of Appeals, which the Supreme Court refused to review in October.
Two of these bills were introduced by State Rep. Sally Kern, the anti-LGBT lawmaker who gained notoriety in 2008 when she claimed homosexuality posed a greater danger to the country than terrorism, saying, “Studies show that no society that has totally embraced homosexuality has lasted more than, you know, a few decades. So it’s the death knell of this country.”
According to a coalition of LGBT groups monitoring Oklahoma — the Human Rights Campaign, the National Center for Lesbian Rights and Freedom Oklahoma — the eight bills were submitted just before the filing deadline.
Troy Stevenson, executive director of the statewide LGBT group Freedom Oklahoma, pledged in a statement to defeat each of the bills in partnership with other organizations.
“Our community is under attack, and we are fighting back,” Stevenson said. “We won marriage last year, and in retaliation, a tiny handful of lawmakers have lashed out at us with an unprecedented amount of discriminatory legislation.”
The two bills introduced by Kern are the Freedom to Obtain Conversion Therapy Act, which would legitimize “ex-gay” sexual orientation conversion therapy and allow parents to seek the widely discredited practice for their children, and House Bill 1597, a bill that would allow Oklahoma businesses to deny services and accommodations to “any lesbian, gay, bisexual or transgender person, group or association.”
Other bills would allow discrimination against LGBT people in the name of religious freedom. One bill, “Oklahoma Religious Freedom Reformation Act,” would allow individuals the freedom to refuse services based on sexual orientation for religious reasons or to refuse to consider a same-sex marriage as valid.
Another bill, the “Oklahoma Religious Freedom Act,” would prohibit the state from asserting a government interest in requiring a person to take part in a marriage ceremony contrary to a person’s religious beliefs.
Four more bills would undermine the newly achieved right of same-sex couples to wed in the state. The “Preservation of Sovereignty and Marriage Act” would prohibit state and local officials from recognizing or performing same-sex marriages and cut off government funds for issuing or recognizing a same-sex marriage license. The “Protection of Religious Freedom in Sanctity of Marriage Act” provides a broad carve-out to allow individuals and religious organizations to refuse services to recognize a same-sex marriage.
Another bill, House 1125, seeks to do away with marriage licenses altogether in Oklahoma and instead require court clerks to file marriage certificates that recognize common law marriages or marriage ceremonies. Finally, House Bill 2215 seeks to stigmatize transgender people by requiring them to be designated as transgender on any marriage application and any marriage license.
Marty Rouse, HRC’s national field director, said the bills “are nothing more than despicably vile direct attacks” on LGBT people in Oklahoma.
“It’s astounding that extreme anti-equality politicians are making such drastic attempts to harm LGBT families,” Rouse said. “We call on all fair-minded Oklahomans to stand up for equality and help stop these horrific bills.”
Oklahoma is but one state where anti-LGBT bills have been introduced at the start of the 2015 legislative session. Other legislation has been introduced in states where courts recently made same-sex marriage legal — Colorado, Indiana, South Carolina, Utah, Virginia and Wyoming — and in states where marriage equality may come soon — Georgia, Michigan, Missouri, Mississippi and Texas.
Including Oklahoma, a dozen states have anti-LGBT legislation pending before their state legislatures, according to a list compiled by the American Civil Liberties Union.
Colorado — House Bill 1037 would prohibit public institutions of higher education from denying a religious student group a benefit solely based on the group’s requirement that its leaders adhere to religious beliefs or a standard of conduct, which could enable discrimination against LGBT students.
Georgia — House Bill 29 is a Religious Freedom Restoration Act, although under this bill no employee may assert rights against an employer that isn’t the government.
Indiana — One pending bill, Senate Bill 127, would allow religious organizations contracting with the state to give preference in employment to individuals of a particular religion and require all employees to conform to the tenets of the religion to extent possible under Title VII, which could enable discrimination against LGBT workers.
Two other identical bills, House Bill 1632 and Senate Bill 568, are Religious Freedom Restoration Acts that would also allow individuals to file private litigation if they feel their religious beliefs are burdened.
Michigan — Senate Bill 4 is a Religious Freedom Restoration Act that would broadly define government to include “a person acting under the color of law.”
Missouri — Two identical bills — House Bill 104 and Senate Bill 248 — would prohibit institutions of higher education from denying benefits or discriminating against religious student associations from requiring leaders to adhere to the association’s beliefs or comply with standards of conduct, which could enable discrimination against LGBT students.
Mississippi — House Bill 858 would prohibit a state higher education institution from refusing to grant recognition to a religious student organization on the basis of the religious content of the group’s speech or from conducting internal affairs.
South Carolina — One bill, Senate Bill 116, would allow anyone employed by a judge of probate or clerk of court or any other officer authorized by law to issue a marriage license to refuse same-sex couples if doing so would violate a sincerely held religious belief.
Another bill, House Bill 3032, would prohibit the use of taxpayer funds or government salaries for paying for an activity that includes licensing or support of same-sex marriage. In the event an employee recognizes, grants, or enforces a same-sex marriage license, that person will be no longer eligible for a salary, pension and benefits from the state.
Texas — Two measures, House Joint Resolution 55 and Senate Joint Resolution 10, are constitutional amendments along the lines of a Religious Freedom Restoration Act. For the House version, the term “government” could be a county, municipality or other political subdivision of Texas.
Another bill, House Bill 623, would prohibit taxpayer funds from being used to license or support same-sex marriage. An employee who issues a license to a same-sex couple or recognizes their marriage would forfeit their salary, pension and employee benefits.
Utah — One bill, House Bill 66, would allow a person authorized to solemnize a marriage to refuse if that marriage violates a person’s sincerely held religious beliefs. Another measure, House Joint Resolution 5, is a Religious Freedom Restoration Act in the form of a constitutional amendment, that would allow religious organizations and individuals acting in connection with those religious organization from offering any service or rite that conflicts with their faith.
Virginia — One bill, House Bill 1409, would prevent any public entity from requiring its contractors to abide by non-discrimination policies that are more inclusive than the state law, which would leave out protections for LGBT people. Another bill, House Bill 1414, would allow people seeking to renew a state license to refuse assisting with same-sex marriage if that would violate religious or moral convictions.
Wyoming — House Bill 83 is a Religious Freedom Restoration Act that would enable a burdened party to bring a claim against a “government or person acting under color of state law.” House Bill 26, much like existing law, would enable an ordained minister to refuse to perform a ceremony of marriage.
Another religious freedom bill is expected to be reintroduced in Kansas, although the bill hasn’t been introduced yet. Last year, the Kansas House approved legislation that would enable individuals and business to refuse services for same-sex weddings, but the bill never came up for a vote in the Senate.
And this list doesn’t take into account what bills may emerge at the federal level. Sen. Ted Cruz (R-Texas) confirmed to the Washington Blade last week that he plans to introduce a U.S. constitutional amendment that would prohibit states from overturning state marriage laws. Also expected is the Marriage & Religious Freedom Act, which is purportedly aimed at prohibiting discrimination in the tax code against organizations that exercise “religious conscience” against same-sex marriage.
At least one campaign has already emerged with the intent of stopping bills in the Georgia General Assembly. Georgia Unites Against Discrimination has launched with the goal of stopping anti-LGBT bills from passing in the state and to legalize statewide LGBT non-discrimination protections.
Jeff Graham, executive director of Georgia Equality, outlined the goals of the coalition in a statement, saying personal stories will be a component of the work.
“Through these coalition efforts, we will educate, organize and activate the citizens of Georgia to stop this dangerous legislation,” Graham said. “We will highlight the stories of real Georgians as we work to make the case that in our state, discrimination against anyone is wrong, and that includes people who are gay, lesbian or transgender.”
What could make stopping these bills difficult is massive Republican victories in state legislatures as a result of the GOP wave last year. The GOP now controls 68 out of 98 partisan state legislative chambers, which is the highest number in the history of the party, although the Republican presence in legislatures already controlled by the GOP is about the same.
History could prove to be a guide. Last year, Arizona Gov. Jan Brewer vetoed a Religious Freedom Restoration Act approved by the Republican legislature after a massive outcry in the media and from Republican leaders and LGBT advocates. Similarly, a religious freedom bill approved by the Michigan House during the lame duck session of the legislature never came up in the Senate.
However, passage of another Religious Freedom Restoration Act succeeded in Mississippi, where Gov. Phil Bryant signed a measure into law in April despite objections from those who feared it would legitimize discrimination in the state.
ACLU’s Rho said the failure of these bills last year gives hope they will die this year — even in Republican legislatures — because it demonstrates opposition to them “cuts cleanly across partisan lines.”
“Gov. Jan Brewer vetoed the bill in a very public way in Arizona with very prominent Republicans urging her to do so,” Rho said. “And we have seen in other states allies that you think would naturally be aligned with one party versus the other, such as the business community, really rising in opposition to these kinds of bills. And so, I don’t think the election outcomes of 2014 necessarily determined how the issues will fare, but we are obviously very concerned and will be very, very vigilant about the movement of these bills.”