Gay rights advocates were celebrating last week after they succeeded in blocking or weakening bills that would have allowed businesses to claim a religious right to discriminate against same-sex couples getting married.
But hold the applause! The victories in Indiana, Arkansas, Georgia, and North Carolina are defensive only. Each of the three is among the majority of states that still today have no laws broadly prohibiting discrimination against LGBT individuals in public accommodations or the workplace. And, even with a likely Supreme Court victory, the battle over marriage equality may not be over; opponents may continue to resist, even if ineffectively.
Gay rights groups, backed by powerful straight allies, called foul when Republican governors in Indiana and Arkansas signed bills with the seemingly all-American title of “Religious Freedom Restoration Act.” They correctly pointed out that the bills were broader than the federal RFRA by allowing the religious-freedom defense not only against government enforcement actions but also in private disputes – for example, between same-sex couples and anti-gay businesses.
Indiana Gov. Mike Pence embarrassingly equivocated on national television when asked by ABC’s George Stephanopoulos whether the bill he had already signed into law would allow discrimination against gays and lesbians. Asked six times, he answered not once. Back home, he held a press conference to deny the accusation: “a smear,” he called it “baseless,” at that.
Supporters of the bill knew better. As the bill was being signed into law, the conservative advocacy group Advance America sent out a release proclaiming, “Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!” The group’s leader, Eric Miller, was one of several anti-gay advocates invited to join Pence for the private signing ceremony..
Pence’s denial could not slow the torrent of calls to change the bill to keep anti-gay discrimination out of it. “Fix It Now!” the usually staid Indianapolis Star urged in a front-page editorial. The NCAA, headquartered in Indianapolis and about to host the men’s college basketball championship, agreed. Angie’s List canceled plans to expand its Indianapolis headquarters. The rock band Wilco canceled a gig. Democratic politicians in several states banned government travel to the Hoosier State.
The GOP-controlled legislature did what it could to contain the damage by sending Pence a modified bill that specified the law could not be cited top justify discrimination on the basis of sexual orientation or gender. Gay rights advocates were grateful for what they could get, but correctly pointed out that anti-LGBT discrimination was still legal in Indiana except in municipalities, such as Indianapolis, with local LGBT rights ordinances.
The issue played out in similar fashion in Arkansas, where Republican governor Asa Hutchinson asked for and got changes that paralleled those in Indiana. Hutchinson acted after being urged along by, among others, Doug McMillan, CEO of the Arkansas-headquartered Walmart Corporation. Republican lawmakers in Georgia and North Carolina decided to spare themselves potential embarrassment by shelving similar religious freedom measures.Even without religious-freedom laws, photographers, bakers, and florists in several states have refused to service same-sex weddings, acting in the face of state civil rights laws that protect sexual orientation. So far, courts or agencies have rejected their arguments. Elane Photography in New Mexico was sanctioned for refusing to shoot a lesbian commitment ceremony; bakeries in Oregon and Colorado and a florist in Washington State have been found guilty of unlawful discrimination for refusing to cater same-sex weddings.
Back in 2009, when only four states allowed gay or lesbian couples to get married, religious and social conservatives vowed in the so-called Manhattan Declaration to fight marriage equality no matter what, even to the point of civil disobedience. Today, marriage equality is the law in 37 states, the number increased thanks to an almost uninterrupted string of more than 60 court victories since December 2013.
The resistance by florists and bakers seems almost laughably feeble, but the pizzeria owner who vowed to provide no pizzas for gay weddings got more than $500,000 in donations for the cause. There is official resistance as well: refusenik clerks in a few states and, more significantly, the Alabama Supreme Court, which has instructed the state’s judges to ignore the federal court ruling that found the state’s same-sex marriage ban unconstitutional.
Same-sex marriage opponents had their say at the Supreme Court as the week ended, filing more than a dozen amicus briefs on deadline for the justices to read before the oral-argument showdown on April 28. Some of the briefs took a high road of sorts, arguing that the issue was for legislators instead of courts to decide. But some for example, one filed by the Mike Huckabee Policy Institute repeated anti-gay shibboleths about public health threats and early mortality among disordered homosexuals.
The front-page victories in Indiana created a misleading impression of an unstoppable gay rights movement. “The gay rights movement is in such ascendancy,” liberal commentator Mark Shields remarked on the PBS NewsHour. Far from it.
The LGBT community is still fighting for equal rights and dignity: the red states in the South and Plains have no LGBT rights laws on the books and the Republican establishments show no interest in enacting any. As the radio talk show Michelangelo Signorile points out in the title of his new book, “It’s not over.” But last week’s events suggest that the corner has been turned.