Assault on Marriage Equality Under Banner of 'Religious Liberty'

BY KATE OPALEWSKI

It took the work of an entire community across the U.S. and the dedication and time of legal teams in many states, to make history and move the country forward in June 2015 when the Supreme Court ruled to legalize same-sex marriage nationwide.

As right-wing conservatives plot to erode progress, what issues are likely to arise in the next four years?

An online report by Vox said to look for Congress to pass the First Amendment Defense Act -- a piece of legislation that Trump has pledged to sign, even though it would do serious harm to the same-sex spouses that he purports to be "fine with."

The core provision of FADA prohibits the federal government from imposing any "tax, penalty, or payment" on a person who acts according to a religious or moral belief that marriage should be confined to one man and one woman (or that sexual intimacy should be confined to that sort of traditional marriage).

This language, according to the report, goes beyond the protection for religious actors contained in the Religious Freedom Restoration Act, the law that fueled Burwell v. Hobby Lobby. Instead of imposing a balancing test, as RFRA does, FADA provides virtually absolute protection to religious traditionalists who refuse to comply with federal civil rights laws that conflict with their views about marriage and sexuality.

Some of the implications

First, federal anti-discrimination provisions are sometimes enforced through the tax code, according to an analysis by the Public Rights/Private Conscience Project at Columbia Law School. FADA would exempt religious actors from those requirements. For example, group health plans covered by federal law could restrict health care benefits for LGBT or unmarried persons and their dependents. Similarly, companies might adopt discriminatory retirement plans without risking the loss of tax benefits usually associated with such plans.

Moreover, FADA would prohibit the government from denying federal contracts to organizations that discriminate against LGBT employees or beneficiaries. And finally, if FADA is read broadly (but reasonably) to prohibit federal officials from imposing any "penalty" on religious organizations that oppose sexual equality, then the law would block federal enforcement of a wide range of civil rights laws in employment, housing, and public accommodations. The Justice Department could not take action against landlords who exclude same-sex couples, hotels that turn such couples away, and restaurants that refuse to serve them.

Even some conservative-leaning commentators have opposed FADA's protection of for-profit businesses and government employees, according to the report. So FADA would undermine civil rights provisions. But even without new legislation, Trump could undo important protections for LGBT people.

On the Anti-Gay Radar

While the majority of Americans support LGBT rights, these gains have produced a strong backlash. The hardline groups promoting RFRAs to justify anti-gay discrimination are the Alliance Defending Freedom, the American Family Association, the Becket Fund for Religious Liberty, Focus on the Family, and the Liberty Council.

Also, the National Organization for Marriage, which has outlined its wish list for Donald Trump's presidency. The anti-LGBT group referred to Trump's victory as a "bright and exciting time" for the organization founded in 2007 to oppose marriage equality around the nation. Beginning in 2017, its goal is to "restore marriage, uphold gender, protect religious liberty and promote families."

First on its agenda is the repeal of marriage equality through the Supreme Court, according to an online report by the Advocate. The group plans to work with the president-elect to appoint justices who would overturn the Supreme Court's decision. Calling the decision "anti-constitutional," NOM claims that equality was "imposed" on America.

That decision, however, has been widely popular with the American public. In 2016, Gallup found that 61 percent of the American public supported the right of all couples to wed, a record high. In 2010, just 44 percent of respondents said the same.

NOM also stated that the group will push Trump to "rescind the illegal, over-reaching executive orders and directives issued by President Obama," which he has previously claimed that he will do on his first day in office..."FADA is critical legislation to protect people who believe in marriage from being targeted by the government for persecution," NOM argued.

Protecting LGBT People

While LGBT people can continue to marry legally, they are still at risk of being fired from their job, denied a loan, evicted from an apartment, or thrown out of a restaurant. Chad Griffin, president of the Human Rights Campaign, told NPR that in the past year, his group has tracked 204 bills in 34 states deemed "anti-LGBTQ."

Activists are working hard to update the Elliott-Larsen Civil Rights Act to expand LGBT protections. Until then, for those LGBT people concerned or worried, it is recommended they visit their local civil rights and social justice organizations - ACLU of Michigan, Equality Michigan, the Know Your Rights Project, Fair Michigan, and Lambda Legal - to report any instances of discrimination they are aware of.


Featured
Advertisers

This Week's Issue

Download or view this week's print issue today!