JURIST Guest Columnist Jeremiah A. Ho of the University of Massachusetts School of Law, discusses the recent anti-LGBTQ legislations in several conservative states and suggests that marriage equality is not enough to protect the LGBTQ minority group…

If it had not been clear enough since last spring’s brief controversy over Indiana’s Religious Freedom Restoration Act, the struggle for sexual orientation antidiscrimination was not about to cease with merely a single, pro-LGBTQ US Supreme Court marriage decision over the summer. In fact, the recent news of anti-LGBTQ legislation emerging in several conservative states with large evangelical constituencies—for instance, in Georgia, Mississippi and North Carolina—give pause for thinking that marriage equality was just not enough full equality for sexual minorities. Rather, a more direct and robust fight for sexual orientation antidiscrimination is perhaps rising before us presently.

Some might think that these recent legislations contribute to a step backward from Obergefell v. Hodges. But actually, they represent part of the process of political incrementalism that is keeping the importance of full equality for sexual minorities alive in the national political imagination. And that might not be so debilitating in the long run because often in countries in which same-sex marriage has been achieved, the focus and momentum on gay rights taper down temporarily. That is not to say that there are no grave risks involved for sexual minorities in states where they potentially face the discrimination that these kinds of legislations, if passed, would promote. But Obergefell was not—and should not be considered—the full-stop to progress in gay rights. So with the recent rise of conservative state legislatures passing bathroom bills against transgender school children and passing legislation that would consequently allow faith-based groups to deny services against same-sex couples and LGBTQ individuals, the movement presses on.

The history of gay rights struggle has been contextually one in which religion has served as both sword and shield. First, religion was used to carve out the idea that sexual minorities represented behavior and conduct that was immoral and thus these individuals should be denied protections regarding their civil liberties. But once morality was no longer the effective underlying logic, the rise of religious liberty rhetoric began to spread in the debate over gay rights. No longer relying on morals standards held by certain faiths, those against gay rights used the protection of religious freedom to justify marginalizing sexual minorities. In the aftermath of Obergefell, where same-sex couples were extended the right to partake in an institution that has both civil and religious significance, the defense of religious liberty was emblematically evoked by the likes of Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples. Davis defended her actions by claiming that her religious beliefs conflicted with homosexuality and her freedom of religious exercise shielded her from having to issue marriage licenses to gay couples. In effect, she relied on her religious conscience to justify her refusal.

Many of these recently proposed state laws—such as the Georgia bill that had passed through its state legislature but was eventually vetoed by Governor Deal, or the Mississippi bill that was signed into law—that permit faith-based groups, individuals, or small businesses to deny services to sexual minorities are now positively legislating the conscience exemption. On the one hand, these legislations are broadly reminiscent of the facts involved in Romer v. Evans—the 1996 Supreme Court decision that rendered unconstitutional a state-wide public amendment to Colorado’s constitution that would have prevented any municipal or county actions to protect sexual minorities from discrimination. On the other hand, the social and political climate for LGBTQ individuals is much more positive and pro-LGBTQ than when Romer was decided. We now recognized through Romer and US v. Windsor that in the gay rights context that laws created out of animus toward sexual minorities could invariably be rendered unconstitutional. Based on such doctrinal precedence alone, perhaps courts might later find that these recent laws are also unconstitutional—if in fact animus is found here as well. The dignity rights of sexual minorities reinforce protections of their private conduct under constitutional due process theories promulgated by Lawrence v. Texas. LGBTQ individuals are more visible in popular media. Big businesses, such as Disney and the NFL, are coming to the aid of LGBTQ individuals in light of these recent laws, trying to use their financial and entrepreneurial powers to influence states from putting these discriminatory laws on the books. And of course, same-sex couples can now legally marry.

But the complexity this time around is the religious freedom issue. This is the shield, and yet it is also the distraction. And unfortunately, Obergefell does not necessarily help this debate. The same-sex marriage decision is finite in its application for sexual orientation antidiscrimination. Kennedy’s use of dignity rights was mostly limited and narrowed to the marriage context. Thus, in the absence of more prominent and far-reaching protections of sexual orientation—such as protected class status or Title VII recognition—conservative state legislatures have had the ability to positively protect acts of discrimination by shielding behind insistence on religious freedom.

More clearly than ever, the debate now should move forth to investigate where one particular right begins and another ends. Religious freedom is an imperative liberty in this country and it should be maintained in a society that embraces many different religious practices and ideologies. But rights and freedoms are not absolute—and this notion includes the freedom to exercise religious beliefs. What ought to occur every time religious freedom is used to combat the recognition of gay rights is not merely the acknowledgment that the exercise of religion already deserve protection under the Constitution. We know that already; and frankly this is the distraction in the political and legal rhetoric that leads to bills such as the one in Georgia or to the Kim Davis incident last fall—all pronouncements from an anxious body politic that craves that validation. But rather, the true doctrinal debate is whether the exercise of religion has overreached against the recognition and protection of gay rights so substantially that a cognizable harm to the civil liberties of sexual minorities has been produced—whether that’s a dignitary harm or some other legally-recognized injury.

On this note, however, the pro-LGBTQ activists, lawyers and litigants need to start over somewhat from scratch. Despite its importance, what was dismaying about Obergefell was that any potential to draw out dignitary harms based on sexual orientation discrimination was muted within the context of marriage and within Kennedy’s due process theory. Kennedy used a fundamental rights analysis to resolve the case rather than a heightened scrutiny analysis under equal protection—which could have located sexual minorities within a protected class based on sexual orientation. And within Obergefell‘s fundamental rights, the harm in denying same-sex couples the right to marriage was illuminated by the disparity in which state marriage bans prevented the occasion to dignify same-sex couples the way legal access to marriage did for opposite-sex couples. The case was more about discrimination against same-sex couples rather than discrimination purely on the basis of sexual orientation. Those involved in facing these anti-LGBTQ legislation head on will need to demonstrate material and dignity injuries in another way.

To be sure, one’s religious conscience is important to protect because it reflects the exercise of beliefs, faiths and values that the Constitution permits. But this constitutional protection in one person or entity cannot result in facilitating harms to other individuals. If such anti-LGBTQ legislation continue to rise and persist in other states through the use of religious liberties, the result of such legislation may lead to the repeated denial of goods and services to sexual minorities, to the refusal of needed housing for same-sex couples or gay individuals, to the unavailability of safe restroom services to transgender individuals and/or to the absence of protections against general discrimination to individuals based on sexual orientation. All of these incidents must be litigated and phrased in terms of harm, both materially and dignitary, in order to show that in an ordered and pluralistic democratic society that religious freedom must be balanced alongside other individual rights protections in the panoply of civil liberties afforded by the Constitution and that religious freedom ought not to be used improperly as a shield to justify discrimination and bias.

Jeremiah A. Ho is an Assistant Professor of Law at the University of Massachusetts School of Law. His scholarly work focuses on the developments in sexual orientation and the law.

Suggested citation: Jeremiah A. Ho, Anti-LGBTQ Legislations: The Extent of Religious Protections and Sexual Orientation Antidiscrimination , JURIST – Academic Commentary, April 13, 2016, http://jurist.org/forum/2016/04/jeremiah-ho-lgbtq-legislation.php.