The lesbian, gay, bisexual, transsexual (LGBT) equality movement pocketed a major victory last week when religious freedom legislation perceived as “anti-gay” sparked a national uproar, forcing the governors of Indiana and Arkansas to defy social conservatives by rejecting discrimination against LGBT people.
Both have since amended their religious freedom legislation to clarify that it does not authorise businesses to discriminate against gay, lesbian and transgender individuals.
The swift and overwhelming backlash that helped modify the religious freedom Bills – spurred in particular by tech and business leaders – revealed a new front in the broader United States culture wars over LGBT rights. Even as marriage equality emerges a winner in the national battle, other hard-won LGBT rights are being attacked under the guise of religious liberty.
Measures resembling those in Indiana and Arkansas have multiplied across the country – and the majority have garnered less attention. Twelve states besides Arkansas and Indiana have proposed religious freedom laws over the past year. The Bills failed to pass in five states, but are still pending in seven.
The timing of religious freedom laws’ renewed popularity – just before the US Supreme Court is poised to rule same-sex marriage the law of the land – is no coincidence.
“It’s all about marriage,” Barney Frank, the former Massachusetts representative who was the first openly gay member of Congress, told the Guardian. “There were a number of states where they never had to worry about same-sex marriage, because they knew they were never going to pass it. And then the appeals court and supreme court ruled and now they have to confront the reality of same-sex marriage in their states.”
Proponents of religious liberty have sought political cover under the federal Religious Freedom Restoration Act (RFRA), which was authored by New York senator Chuck Schumer and signed into law in 1993 by Bill Clinton. Both Schumer and Clinton are now supporters of same-sex marriage.
But the new wave of religious freedom laws differ dramatically in both scope and context from their predecessors. The original federal and state RFRAs sought to protect the rights of vulnerable religious minorities. They were meant to ensure that prisons, for example, met the needs of an inmate who required a special diet corresponding to his or her faith.
The new wave of RFRAs are seen by critics as a thinly veiled attempt by the religious right to claw back hard-won civil rights now accorded the LGBT community. LGBT advocates charge that the laws poke a loophole in state and local nondiscrimination protections, providing a legal basis for businesses to refuse service to gay, lesbian and transgender customers.
“The motivation behind passing these laws” has fundamentally changed since RFRAs emerged in the early 1990s, Adam Talbot, a spokesman for the Human Rights Council (HRC), told the Guardian. They have become “a last stand against equality”.
Although the decisive manner in which leaders from Silicon Valley and the business community rallied against – and ultimately helped change – the Indiana law marked a major turning point, Talbot conceded the project is unfinished.
A bevy of other Bills, disguised under the notion of religious liberty but seeking to chip away at LGBT rights, have spread across the nation. Examples include legislation that empowers clerks to refuse a marriage licence or will, enables adoption agencies to refuse same-sex couples, and restricts transgender individuals from public accommodations, the use of a restroom or access to athletics – all on religious grounds.
Religious freedom “is now predominantly used by religious majorities as a cudgel to undermine our existing civil rights law”, Talbot said.
Whether the business community will mobilise against other states trying to curb LGBT rights is unclear – but their buy-in will be key for groups like the HRC to succeed beyond the borders of Indiana and Arkansas.
The business community is “a very powerful force”, Frank said. “When they say to these guys, ‘You’re getting in the way of the efficient operation of the economy, knock it off’, that seals it.” – © Guardian News & Media Ltd, 2015