JURIST Guest Columnist Kaimipono Wenger of Thomas Jefferson School of Law, discusses the rise of anti-LGBT bills in a number of conservative states and opposite reactions to these bills and the fundamental question: do LGBT rights create burdens on religion, from which churches and their members should be protected…

The past few weeks have seen the rise and fall and rise again of high profile “religious liberty” bills which could significantly affect the LGBT community. What are these bills, and why are they making headlines lately? Do they protect rights, take rights away or something in between? The answer is complicated.

Let us start with some general background. As a general matter, workplaces and businesses discriminate all the time, for a variety of reasons, as they make choices about who to hire or promote or serve. A policy of “no shirt, no shoes, no service” discriminates against people who do not want to wear shoes. It is generally legal for businesses to differentiate between categories of people, based on any of a number of criteria.

However, businesses cannot discriminate based on certain impermissible criteria. Many of these categories are set out in federal anti-discrimination law. For instance, businesses are barred from discriminating on the basis of race, gender, religion and some other categories, under the Civil Rights Act of 1964 and related federal statutes. (There are some exceptions. For instance, an organization could discriminate on the basis of religion when hiring a new Rabbi or parish priest, even if it could not discriminate when hiring a paralegal or electrician.)

Until recently there has been little recourse for LGBT individuals under anti-discrimination laws. Sexual orientation is not an enumerated category under federal antidiscrimination law, and so until recent years it was pretty much legal everywhere for businesses to refuse to hire or serve based on a person’s sexual orientation. (In fact, until 2003, some state statutes labeled same-sex sexual activity a criminal act which could result in jail time.)

However the gay-rights revolution of recent years has altered the legal landscape. For instance, the US Supreme Court recently ruled in favor of marriage equality, holding that state laws prohibiting same-sex marriage are unconstitutional. On the anti-discrimination front LGBT advocates have won some protections at the federal agency level. (Advocates continue to propose adding sexual orientation to federal antidiscrimination law.) And a variety of states such as California have in the past decade enacted state statutes which prohibit discrimination based on sexual orientation or gender identity.

State-level anti-discrimination statutes have resulted in significant victories for LGBT advocates. For instance a photographer in New Mexico was fined for violating the state’s anti-discrimination law; this case and others have generated a firestorm of critical commentary from conservative critics, sometimes in apocalyptic imagery and sometimes incorrectly tied to questions of same-sex marriage legalization.

In the post-Obergefell world, these anti-discrimination issues stand out more clearly, and conservatives remain alarmed. For instance conservative blogger Matt Walsh recently wrote that “This is not about photographers and bakers anymore. Christianity itself is bigoted and hateful, [activists] believe … Batten down the hatches, Christians. War has been declared.” (Walsh also wrote that “gays don’t have the right to be free from discrimination.”) In other statements, some religious organizations have worried that religious officiants may be forced to solemnize same-sex marriages, or that churches who refuse to do so may lose their tax exemptions. Some conservative critics warn of a sinister “gay mafia” of “fascist” LGBT activists who will use antidiscrimination laws as a bludgeon against religious organizations and their members. This narrative paints LGBT activists as interested in taking away the freedom of religious organizations and their members (such as freedom to preach that homosexuality is a sin and that God supports only heterosexual unions); in this story, it is churches and their members who are the real victims of discrimination. And in response to this perceived threat, religious organizations have urged states to pass a variety of state statutes based on the principle of religious freedom.

Religious freedom is itself a fascinating paradox. The First Amendment guarantees a right to “free exercise” of religion. But what if religious worship clashes with other laws? We may want to be cautious about letting religion override other laws, or we run the risk of someone saying, “I belong to the Church of Bank Robbery” to try to escape criminal punishment.

Courts have taken different stances over time on the question of balancing religious freedom against other goals. In the late 1800s, the Supreme Court held in the high-profile Reynolds case that the First Amendment protects beliefs but not actions, and thus did not protect the practice of Mormon polygamy. (Shortly after Reynolds, the mainstream Mormon church renounced polygamy.) However, a variety of other cases challenged that notion. And of course religious practice often includes not only belief, but also action: Attending church and taking sacraments, to be sure, but also sometimes practices like wearing specific clothing or avoiding military service. Given that reality, it is entirely possible that facially neutral laws which regulate action will have a disproportionate impact on religious practice.

The federal Religious Freedom Restoration Act (RFRA) was passed in response to just this sort of tension—a set of court cases involving federal drug laws and Native American religious use of peyote. Under RFRA, a federal law (even if generally applicable) cannot substantially burden someone’s religious belief unless it is narrowly tailored to a compelling government interest. A variety of states have passed state RFRAs as well. (Federal RFRA does not apply to the states.)

Given this backdrop, a number of states have considered state RFRA legislation to protect against perceived anti-religious overreaching by LGBT rights advocates. In the past few years Arizona [PDF] and Indiana have made news for these statutes; last week Georgia and Mississippi joined the fray. The popularity of these statutes highlights the fundamental question at issue: Do LGBT rights create burdens on religion, from which churches and their members should be protected?

The bills are framed in exactly that way. For instance, Mississippi’s House Bill 1523 has the melodramatic title of “Protecting Freedom of Conscience from Government Discrimination.” Georgia’s proposed HB 757 [PDF] was less melodramatic in its language but clearly responded to similar concerns.

As far as the legal effects of the bills and proposals, it is complicated. They often contain a combination of innocuous content alongside more troubling provisions. For instance, Georgia’s proposed bill explicitly provided that religious officiants were not required to solemnize same-sex weddings, which is a harmless enough provision. LGBT rights groups have no desire to force priests to solemnize weddings. Similarly, HB 757 set out that no individual would be required to attend a wedding against their wishes. These provisions are harmless, if a little silly. There is no threat of such thing happening, and if it makes people feel better, there is no real downside to setting these out in writing.

A second set of provisions in these bills deals with religious auxiliaries such as schools. These are more controversial. Churches often own or operate a variety of entities that are not openly religious in nature. Should those entities be exempt from antidiscrimination laws?

The most controversial part of the bills are their RFRA-like provisions which would potentially allow private individuals to refuse to serve LGBT people based on religious belief. Should a doctor or accountant or pizza maker have a religious-freedom right to refuse to serve gay or lesbian customers? Is this in effect a “license to discriminate“? Where does one right end and another begin? (The area of private religious freedom versus LGBT accommodation is highly contentious [PDF]; for extended discussion, see this book, or basically the entire oeuvre of Doug NeJaime.) Similar questions arose during the passage of the original 1964 Civil Rights Act, as politicians like Barry Goldwater argued that civil rights legislation would take away the freedom of white business owners to exclude Black customers. (Such arguments are mostly rejected today, though a few scholars still make those claims.)

The surprising new twist in the story today is the new muscle of social media campaigns and business pressure, similar to that used by civil rights leaders decades ago. Georgia faced intense pressure from entertainment groups and major business interests, and as a result Georgia’s governor vetoed the proposed bill.

But in the wake of the Georgia veto, conservatives are doubling down (although some have criticized this effort). A new bill in Mississippi is even broader in scope, potentially affecting heterosexual couples as well if they are not married. (Mississippi, without Georgia’s extensive business community, may be less susceptible to business pressure.) Meanwhile North Carolina enacted a state-level ban on local transgender-protection ordinances; this has resulted in business fallout as well, such as Paypal canceling a planned expansion.

It seems like for every action there is an opposite reaction. States and cities have banned official travel [PDF] to North Carolina; a conservative writer says that this is a new Civil War about “slavery to liberal dogma that LGBT-worship beats freedom to worship and serve God.” Bruce Springsteen cancelled a planned concert; critics called him a bully. There is a social media war for hearts and minds, and the business community seems ready to come out in support of LGBT rights.

In the words of the Boss, LGBT advocates can now sing:

Tollin’ for the rebel, yeah, tollin’ for the raked
Tollin’ for the luckless, the abandoned and forsake
Yeah, tollin’ for the outcasts, burnin’ constantly at stakes
And we gazed upon the chimes of freedom flashin’

Kaimipono Wenger is a professor at Thomas Jefferson School of Law. His research focuses on a variety of civil rights topics. His current work examines issues in critical race theory, reparations and apology for slavery and Jim Crow, theories of justice in mass restitution, LGBT rights, law and religion, and Native Hawaiian rights. Prior to joining Thomas Jefferson in 2005, Professor Wenger clerked for Judge Jack B. Weinstein of the Eastern District of New York (he was the “tobacco clerk” that year), and practiced law with Cravath, Swaine & Moore, LLP, in New York City.

Suggested citation: Kaimipono Wenger, “License to Discriminate” or “Gay Mafia”? Religious Liberty Bills, LGBT Rights and Anti-Discrimination Law , JURIST – Academic Commentary, Apr. 12, 2016, http://jurist.org/forum/2016/04/Kaimipono-Wenger-antidiscrimination-laws.php