Update: On Wednesday evening, Arizona Governor Jan Brewer vetoed SB 1062.
Arizona Governor Jan Brewer is under intense pressure to veto a “gay Jim Crow” law that would make it legal for businesses to discriminate against anyone as long as it’s based on a “deeply held religious belief.” Although sexual orientation isn’t mentioned in the text of the bill, the measure is widely seen as a reaction to recent legal victories by the LGBT community. After the bill’s passage, nationwide outrage ensued. Twenty years ago, Arizona lost a planned Superbowl when its legislature refused to honor Martin Luther King Day, and there is talk of losing another one if it legalizes discrimination against gays and lesbians. And with Arizona’s business community warning that long-term economic damage could result from its enactment, even some of the Republican lawmakers who voted for the bill are now urging Brewer to veto it. She has until Friday either to sign or veto the bill before it automatically becomes the law of the land.
But while all eyes are on Arizona, similar legislation is popping up in state houses across the country. As they lose ground in the culture wars, religious conservatives have seized on a new strategy: carving out exemptions from laws of which they disapprove on the grounds that they violate their religious liberties.
Joshua Holland: The first of these bills to get lots of attention passed the Kansas House of Representatives with a pretty healthy majority, but was effectively killed in the Senate last Thursday. For those who haven’t followed the story, what would this bill have done?
Dana Liebelson: The Kansas bill was one of the most extreme bills we’ve seen on this issue. It explicitly allowed discrimination against same sex couples and said that this would apply to food service, hotel rooms, social services, adoption rights and even employment, and there wasn’t even an exception made for government employees, so government employees could also be allowed to deny same sex couples in Kansas these rights.
Holland: Just to be clear, you’re saying that the guy down at the DMV could refuse to process your application for a driver’s license because you are gay – on religious grounds?
Liebelson: Yes, and whoever was discriminated against would have no legal grounds to sue. So it basically legalizes that discrimination, or protects anyone who wants to make these sort of crazy claims.
Holland: And even though this bill didn’t pass, there was a diner down in Kansas that refused service to a regular customer who happened to be gay and then posted a sign in the window that said “No gay eating.”
Liebelson: That’s why people have been calling these ‘Jim Crow-style bills.’ They’re like something that’s out of 1955.
Holland: Over at Slate, Mark Joseph Stern wrote a piece called “Kansas Anti-Gay Bill May Have Been a Delightfully Ironic Political Ploy.” I don’t know if I’d use the word “delightful” here, but he had a theory: Kansas governor Sam Brownback, a dedicated culture warrior, is looking surprisingly weak against a Democrat named Paul Davis, who is currently the House minority leader. Davis is running a bread and butter economic campaign and he’s trying to stay away from social issues. So Stern thinks Brownback may have orchestrated this push in order to get Davis to vote against it so he could attack Davis as an enemy of religious freedom.
The big problem, of course, with Stern’s theory is that similar bills are springing up all over the place. Tell us a little bit more about the other states that are adopting?
Liebelson: We’ve seen bills that are remarkably similar to the Kansas proposal in Georgia, South Dakota and Tennessee. And so far, once people figured out that they explicitly said you can discriminate against same-sex couples, they’ve gotten a lot of blowback. But the South Dakota bill was just absolutely crazy. I mean they actually put in the bill that it’s protected speech to tell someone that his or her lifestyle is wrong or a sin — which, under the First Amendment is already protected speech. And it also said that an LGBT person who brought a lawsuit charging discrimination based on sexual orientation could face damages of no less than $2,000 dollars. So if you brought a lawsuit because you were discriminated against, you would end up paying serious money out-of-pocket.
Holland: You wrote that these bills are a response to some civil suits that have social conservatives up in arms. Tell us a little bit about that.
Liebelson: Sure. While we’ve seen these bills that explicitly say ‘same sex couples,’ they’re actually a new twist on an old measure called the Religious Freedom Restoration Act. Advocates for these bills say, “Hey, this is nothing new. We have a federal Religious Freedom Restoration Act. We’ve seen this before.” But, this is actually an entirely new kind of bill because it explicitly says in the language — and I had to dig through the text of all these bills to find this out — that anyone can use religion as a defense in a private lawsuit. And it extends this privilege to companies, so not just individuals. So a company could be like, “Hey, I don’t want to provide adoption services to a same sex couple, but you can’t sue me because it’s my religion.” And we’ve seen bills like that in Arizona, Hawaii, Ohio, Oklahoma, Mississippi.
According to the ACLU and people who have been critical of these bills, they are a direct reaction to a case in New Mexico last year, where a photographer refused to photograph a same-sex marriage, and the photographer was sued and lost that case and the company was found to have discriminated.
Holland: There was another case in Washington State, where it was a florist who refused to provide flowers for a same-sex couple’s wedding. And a Colorado judge ordered a baker to bake a cake for another one.
Liebelson: Yes, these are the cases that religious freedom advocates keep pulling up. But the thing is, the language in these bills is so broad, it doesn’t just stop someone from baking a cake for a same sex wedding. It also extends it to, “I don’t want to hire you because I think that you might be gay.”
Holland: It’s interesting that the country is going one direction — gay rights advocates are trying to get the Employment Nondiscrimination Act passed in Washington. Although that’s unlikely to happen with this Congress, that’s where the nation is heading. And then there are these red state redoubts where they’re going the opposite direction.
You mention in the piece that the these Religious Freedom Restoration Acts already exist in 29 states?
Liebelson: Yes, either through legislation or as a result of court actions.
Holland: Can you clarify what the difference is between this new crop and those that are already on the books?
Liebelson: These bills started out as, “Hey, we want to make sure that new laws are not burdening religious exercise.” But in the last few years, we’ve seen these laws become much more broad, so nearly every claim of a religious burden can overturn state law. And I think a good example of that is someone who goes to church on Saturdays could claim that parking tickets issued for failure to pay the meter burdens their ability to attend church, so they should be exempt from such fines.
Holland: Reading your piece, I kept thinking that there must be an ALEC-like organization coordinating all of this legislation popping up in different states at the same time. ALEC writes model laws and then fetes state lawmakers to get them passed. Did you find an entity like that behind all of this?
Liebelson: I think a better description would be that it’s a network of conservative groups that have been working together very closely, and that’s why we’ve seen all these bills kind of come up at the same time with very similar language. The two groups that I found to be very involved with this legislation are the American Religious Freedom Program, which is part of the Ethics and Public Policy Center — sort of a neo-conservative organization that was founded in 1936 — and then CitizenLink, which is a branch of Focus on the Family. They have a bunch of state groups, and those groups have been involved, either in pushing legislation, or in some cases, they wrote the legislation.
Holland: Erick Erickson, the Fox News contributor, tweeted, “Work is ministry.” Is baking a cake an act of religious expression — and is that the heart of their argument?
Liebelson: People who are critical of these bills say that religion doesn’t extend to when you’re renting out hotel rooms or baking cakes. It’s definitely a very new definition. And we’re seeing this play out, not just with the same sex marriage stuff, but also with the Hobby Lobby case and providing contraception. And it’s going to be the big fight, I think, for the next couple of years.
Holland: The LGBT community has been a persecuted minority. Christians have not. We’ve seen this remarkable shift in public attitudes towards gays and lesbians because they’ve successfully made a rights-based argument, and rights-based arguments do very well in our political culture.
Your typical rank and file social conservative believes that this is a legitimate claim to religious freedom, but I can’t help wonder if there’s a Frank Luntz type of messaging expert in the leadership of the movement who knows that taking wedding photographs has nothing to do with exercising your religion, but decided that this was the right rhetorical approach to take.
Liebelson: I’m not sure if there is one person, but I do think this is definitely a new tactic, in declaring that corporations are not only people, but that they’re people who can hold religious views, which is a very remarkable claim.