ason
Moreau-McCoy, left, James Weaver and Darre Foret wave flags in support
of same sex marriage outside the county probate court house in Mobile,
Ala., on Feb. 9. (Dan Anderson/EPA)
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 unanimously
Feb. 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.
(UPDATE: The Senate judiciary committee rejected HB 1228 on a 3:3 vote today. Both Wal-Mart and Gov. Hutchinson criticized the bill on Tuesday. The HRC also launched an ad campaign against it today.)
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.)
In Texas at least, the bills that gay rights groups are condemning don’t seem to be going very far. SB 343
has not made it out of committee, nor have religious freedom measures
HJR 55 and
SJR 10.
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