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?
A report by Vox said to look for Congress to pass the First Amendment Defense Act — a piece of legislation that President Donald Trump has pledged to sign, even though it would do serious harm to the same-sex spouses that he purports to be “fine with.”
FADA is also in line with Vice President Mike Pence’s beliefs about marriage. “Pence clearly has hoped to bring his ‘religion for discrimination’ agenda from Indiana to the entire country,” said Jennifer C. Pizer, senior counsel and director, Law and Policy Project for Lambda Legal.
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.
Legal experts have said they are confused about what exactly FADA would mean, because the language is intentionally broad and vague. “FADA’s language is so sweeping that it’s impossible to catalog all its likely impacts on LGBTQ people and their families,” Pizer told Refinery29in February. “Its consequences would be devastating for huge numbers of Americans, and it would prompt widespread confusion and intensive litigation.”
What we do know, Pizer said, is that the point of FADA is to make it a “religious right” to discriminate against workers, tenants, patients, and other people who are currently protected in various ways by federal laws, rules, and nondiscrimination terms of federal contracts and grants.
“FADA would really blow gaping holes into our nation’s civil rights protections,” said Sarah Warbelow, legal director for the Human Rights Campaign. “All the sorts of ways in which the federal government has begun to extend critical protection to LGBTQ groups, FADA would allow people to pick and choose whether or not they could treat you equally, based on their religious beliefs — and using taxpayer funds.”
To give the community a sense of which organizations or businesses receive government funding and would get free rein to discriminate under FADA, Warbelow said it’s almost all healthcare facilities, the vast majority of universities, businesses that have five or fewer board members, and homeless shelters. The last time FADA was introduced to Congress on a federal level, it didn’t include specific provisions targeting transgender people, although Warbelow said it’s likely that FADA will be updated to include something about “the religious belief that sex is determined at birth.”
FADA also protects the religious belief that sexual relationships should only take place within heterosexual marriages, so Pizer said in the report that single parents and unmarried straight couples could be impacted, too. Under FADA, an organization could assert the religious belief that they don’t want to give benefits to same-sex couples. Corporations and nonprofits could refuse to allow same-sex spouses to take time off to care for their spouses under the Family and Medical Leave Act. Or, if an organization decides that a same-sex relationship is incompatible with their beliefs, they could terminate the person’s employment. FADA even gives certain individuals the legal right to discriminate.
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 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. Since the beginning of this year, the organization’s goal has been 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 a report by the Advocate. The group has worked with the Trump administration to appoint justices who would overturn the Supreme Court’s decision. Calling the decision “anti-constitutional,” NOM claims that equality was “imposed” on America.
LGBT advocacy groups and individuals agree that claims of religious freedom are being abused to discriminate against the LGBT community and other minority populations, as the community has seen more of recently.
Pidgeon v. Turner
The Texas Supreme Court is pondering whether the state can deny spousal benefits to same-sex couples simply because they are gay, according to a Slate report.
The plaintiffs, Jack Pidgeon and Larry Hicks, are Houston taxpayers who oppose the city’s policy of providing spousal benefits to all married state employees, gay or straight. They point out that the policy violates Texas’ same-sex marriage ban, which bars the state from providing any “right” or “benefit … asserted as a result of a marriage between persons of the same sex.” Houston first defended the policy, which it enacted in response to a lawsuit in 2013, on the grounds that the Supreme Court’s decision in United States v. Windsor cast doubt on the constitutionality of anti-gay marriage laws. After Obergefell, it argued, reasonably, that because states could no longer discriminate against same-sex couples, the Texas spousal benefits ban was invalid, and the city’s extension of spousal benefits to same-sex couples was constitutionally compelled. As taxpayers and “religious conscientious objectors” to same-sex marriage, Pidgeon and Hicks insist that they have standing to challenge Houston’s policy in court. And they want the Texas Supreme Court to hold that the state ban on spousal benefits is totally constitutional under Obergefell–rendering the Houston policy unlawful.
Washington Supreme Court Disagreed with Anti-Gay Florist
The Washington Supreme Court’s ruling in February against a Christian florist who was fined by the state for refusing to provide flowers for a same-sex wedding is a victory for the LGBT community. But several cases involving anti-gay Christian wedding vendors have emerged in recent years and may not all play out the same.
The justices, according to a CNN report, agreed with a lower court that Barronnelle Stutzman, owner of Arlene’s Flowers in Richland, violated a state civil rights law that bars discrimination in public businesses on the basis of sexual orientation. The court also ruled that the law does not infringe on her free speech.
The Alliance Defending Freedom, the Christian legal organization representing Stutzman, pledged following this ruling to take the case to the U.S. Supreme Court.
“The Washington State Supreme Court’s ruling tramples on our nation’s long held tradition of respecting the freedom of Americans to follow their deeply held beliefs, especially when it comes to participating in activities and ceremonies that so many Americans consider sacred,” Tony Perkins, president of the conservative Family Research Council, said in a statement. He also called on President Trump to sign a draft executive order expanding the right of people of faith to exempt themselves from certain actions and laws.
In response, Elizabeth Gill, staff attorney with the ACLU’s LGBT Project, said, “Religious freedom is a fundamental part of America. But religious beliefs do not give any of us a right to ignore the law or to harm others because of who they are. When people experience acts of discrimination, they feel that they are not full and equal members of our society, and we’re delighted that the Washington Supreme Court has recognized this.”
Kentucky Governor Signs “Charlie Brown Law”
A recent Vox article reports SB 17, known as the “Charlie Brown law,” would allow anti-LGBT discrimination in Kentucky schools. The bill passed the state House of Representatives in an 81 to 8 vote after a Kentucky school cut a bible verse from their production of “A Charlie Brown Christmas.”
The measure allows student organizations at high schools and colleges–under the guise of expressing religious viewpoints–to discriminate against LGBT students. The law is said to protect students who “voluntarily express religious or political viewpoints…in classroom, homework, artwork, and other written and oral assignments” and enshrines students’ right to “distribute religious or political literature in a public school.”
Gov. Matt Bevin’s “shameful decision to sign this discriminatory bill into law jeopardizes non-discrimination policies at public high schools, colleges, and universities,” said Warbelow, according to the report. “No student should fear being excluded from a school club or participating in a school activity because they are LGBTQ.”
Warbelow added, “While of course private groups should have the freedom to express religious viewpoints, they should not be able to unfairly discriminate with taxpayer funds.”
South Dakota Governor Signs Religious Adoption Protections
A new law, Senate Bill 149, passed by South Dakota Gov. Dennis Daugaard on March 10 will allow state-funded child service agencies to deny support to LGBT couples and individuals on the grounds of religious liberty, according to an ABC News report. The bill is the first to be passed on the grounds of religious freedom since the Supreme Court legalized gay marriage nationwide in 2015.
The law states that child placement agencies, which include adoption agencies and foster care, are free to refuse service under any circumstance that may conflict with “sincerely-held religious belief or moral conviction.” Leading advocacy groups including the HRC and ACLU have raised concerns that the bill will open child service agencies, which support over 1,200 foster children in the state, to deny adoption and foster services to minority groups including LGBT couples, single parents, and mixed-faith couples.
“We’re deeply disappointed by Governor Daugaard’s decision to green light Senate Bill 149,” said Libby Skarin, policy director for the ACLU of South Dakota in a statement. “This discriminatory legislation takes South Dakota in the wrong direction, and sends the message that our leaders are more concerned with the desires of religious agencies than the rights of individuals and children in our state.” The ACLU said they are “examining legal options” in response to the bill.
Christian Bakers Take Fight Over Same-Sex Wedding Cake to Oregon Appeals Court
The case of the Gresham bakers who made national headlines after refusing to bake a cake for a lesbian couple’s wedding landed before the Oregon Court of Appeals on March 2. The bakers, Aaron and Melissa Klein, argued that Labor Commissioner Brad Avakian and the Bureau of Labor and Industries violated state and federal laws by forcing them to pay $135,000 in damages to the couple, according to The Oregonian’s report. The legal team behind Sweet Cakes by Melissa also said the state violated the Kleins’ rights as artists to free speech, their rights as Oregonians to religious freedom and their rights as defendants to a due process. They argue the damages amount was excessive and that Avakian, who praised an LGBTQ advocacy group on Facebook the year before the hearing, should have recused himself. In their appeal, the Kleins are seeking a religious exemption to the 2007 Oregon Equality Act, which protects Oregonians from discrimination.
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 HRC, told NPR in 2016 that his group had tracked 204 bills in 34 states deemed “anti-LGBTQ.”
Activists in Michigan 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.
In addition, people are encouraged to call their congressperson. Elected officials need to hear from their constituents that discrimination is wrong, even under the pretense of First Amendment protections. The general consensus is there’s a real chance at defeating this legislation if the LGBT community and its allies send a clear message to Congress.