Even a broken clock is right twice a day. Heeding calls from gay-rights supporters, business groups, and Republicans like John McCain and former presidential candidate Mitt Romney, on Wednesday Arizona governor Jan Brewer vetoed a "religious liberty" bill that would have allowed for-profit businesses to refuse service to gays and lesbians so long as they were motivated by "sincerely held religious belief.” A nearly identical law failed to advance in Kansas last week. Now, in light of the blowback, anti-gay discrimination bills in conservative legislatures—including Mississippi, Georgia, and Oklahoma—have stalled, and even lawmakers who voted for such measures are stepping back their support.
The failure of these anti-gay discrimination bills amounts to a stern rebuke to the religious right, which sees defeat on the horizon in the gay-marriage fight. Just in the past two months, judges have overturned bans on same-sex marriage in Oklahoma, Virginia, Texas, and Kentucky. Rather than try to stop the inevitable, social conservatives in red states have sought to exempt themselves from future gay-rights legislation under the banner of “religious liberty.” But these "religious liberty" bills are a clear case of conservatives drinking their own Kool-Aid. The scenario of a Christian baker being forced to make a cake for a same-sex couple may rile the base and fill airtime at Fox News, but most Americans simply don't see sticking two grooms on a wedding cake as persecution. They do, however, recognize turning away a gay couple from a restaurant or emergency room as a violation of civil rights.
The ease of this win came as a surprise of some gay-rights supporters, accustomed to waging years-long guerrilla warfare in states across the country. "As recently as two or three weeks ago, it looked like doom around the corner," says Jay Michaelson, director of the LGBT Global Rights Initiative at the Democracy Council and author of "Redefining Religious Liberty: The Covert Campaign against Civil Rights," a recent report from progressive think tank Political Research Associates. "But there was a pretty effective response that showed these bills for what they are." Marci A. Hamilton, a professor of law at Cardozo Law School who advises lawmakers on Church-State issues, says social conservatives fundamentally misread the public's appetite for such laws. "I don't expect these laws to make it and I don't expect there to be much more on this issue,” Hamilton says. "The window for getting laws to discriminate against gays and lesbians has essentially closed.” A poll released this week by the Public Religion Research Institute, a nonpartisan think tank, shows just how tone deaf the attempt was: Not only do a majority of Americans support same-sex marriage; a majority of Catholics, Jews, and white mainline Protestants now do. Evangelicals and black Protestants still oppose gay nuptials by 59 and 69 percent, respectively, though support is higher among evangelical and black Millennials.
But gay-rights advocates might get blindsided. In the arena of LGBT rights the "religious liberty" argument might not have traction, but the tactic has been far more effective in attacks on reproductive rights. The challenge to the contraception mandate in Sebelius v. Hobby Lobby, scheduled to be heard by the Supreme Court next month, shares the same rationale as the Arizona law: That for-profit companies and employees should be exempt from laws that conflict with their religious beliefs. "It's really important to connect what's going on in Arizona with the Hobby Lobby case," says Sally Steenland, director of the Faith and Progressive Policy Initiative at the Center for American Progress, a left-leaning think tank. "It's giving religious liberty to for-profit corporations, which has never been done and has no precedent, and allowing them to pick and choose which laws they want to obey."
It's easy to see how a win for social conservatives in Hobby Lobby could sanction the same sort of discrimination as the Arizona law. If a for-profit employer is allowed to opt out of the contraception mandate, it stands to reason that refusing to extend health benefits to gay couples would also be protected. "It's a slippery slope," Steenland says. "The Hobby Lobby case is not dangerous just for women and LGBT people," adds Michaelson. "It opens door of all kinds of potential abuses." That's no exaggeration. Sebelius vs. Hobby Lobby is poised to become the Citizens United of the culture wars. In fact, the question at the heart of the case bears a striking resemblance to the one the justices considered in Citizens: Do corporations have freedom-of-religion rights? If the Supreme Court finds that they do, then religious owners and employees of for-profit corporations have pretty good grounds for refusing to cover treatment for HIV or any health care related to the pregnancy of an unwed mother.
Courts have long recognized that religious institutions have a privileged place in society. Thanks to the protections offered by the First Amendment, churches are generally exempt from nondiscrimination laws; they can turn away not just gays but racial and ethnic minorities and members of other religions. But once you leave the pews and engage in commerce, the deal changes. Whatever your views, businesses have to serve all comers. It's our basic social contract: In the interest of fairness and getting along, we have to put up with people we disapprove of in the public square. It is usually conservatives who accuse gay-rights supporters of seeking "special rights." But what the religious right is attempting with "religious liberty" laws like the one in Arizona and the Hobby Lobby case is to make religious individuals and for-profit companies a law unto themselves.
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