Sometimes you hate to be proven right. In an article in The American Prospect’s recent winter issue, I wrote that while marriage equality enjoyed some significant victories in 2014, Republicans would likely use their electoral successes that November to push back hard. Under the guise of “religious liberty,” Republican lawmakers at the state level were poised to legalize and protect discrimination against LGBT people in countless ways.
And how. Indiana’s Religious Freedom Restoration Act (RFRA) may have grabbed the most attention, but it’s just scratching the surface. Republican lawmakers had, as of April 6, introduced more than 100 pieces of anti-LGBT legislation in 29 states, according to Human Rights Campaign, including more than 25 RFRA bills. The bills challenge LGBT rights in adoption and foster care, access to health services, and even in organizing student groups on campus. Trying to keep up with all the action at the state level is a bit like playing “whack-a-mole,” says Rebecca Isaacs, executive director of the Equality Federation.
In Texas alone, activists are looking at more than 20 pieces of anti-equality legislation, including measures to strip provisions from the state RFRA that prevent it from being used to support discrimination. In Louisiana, a state lawmaker has introduced a religious freedom bill that would bar the state from denying a job, contract, license, certification, or tax deduction to someone who takes action, “in accordance with a religious belief or moral conviction” about marriage. According to the Associated Press, Governor and likely presidential contender Bobby Jindal intends “to fight for passage of this legislation.”
And last week in Florida, legislation that would give adoption agencies the ability to discriminate based on “religious or moral convictions or policies”—what Equality Florida’s Nadine Smith calls “taxpayer-funded, legalized discrimination aimed at gay people”—passed the state House 75–38. While the bill failed to pass the state Senate after being introduced, another vote this Monday could bring it to the governor’s office.
Florida is also among the states considering bills making it illegal for a transgender person to use a bathroom other than one designated for the gender they were assigned at birth. Mara Kiesling of the National Center for Transgender Equality recently wrote that such bills are an expected backlash to progress and in the long run are a sign that trans people and their allies are winning the longer struggle for acceptance.
That may be true. But the raft of anti-equality legislation—like the April 7 vote in Springfield, Missouri, to overturn an ordinance extending nondiscrimination protections to LGBT people—is also clear evidence that opponents of LGBT equality are not giving up in spite of a year of losses on marriage equality. That reality is reflected in the title of activist and journalist Michelangelo Signorile’s new book, released with exquisite timing this month: It’s Not Over: Getting Beyond Tolerance, Defeating Homophobia, and Winning True Equality.
Signorile says the movement “saw marriage as a sort of Holy Grail” in terms of identifying gay people with a cultural and religious ideal that people understand and want their loved ones to share. But nondiscrimination laws, he says, are different, because they are about straight people interacting with LGBT people.
It is the intersection of marriage equality and nondiscrimination laws that has motivated the recent push for “religious freedom” laws at the state level. People For the American Way Senior Fellow Elliot Mincberg, who was involved in drafting the original federal RFRA legislation more than 20 years ago, writes in The Huffington Post that the spate of state RFRA laws introduced this year are aiming to take advantage of the Supreme Court’s decision last year in Burwell v. Hobby Lobby. Although that case was about insurance coverage for contraception, the decision opened the door for state RFRAs to become tools for getting religious exemptions from anti-discrimination laws. The Family Research Council even called the Indiana RFRA law “the Hobby Lobby bill.”
That brings us to Indiana, where the passage of a particularly expansive state RFRA blew up in Governor Mike Pence’s face when it became publicly identified with a push for discrimination against LGBT people. Marc Benioff, CEO of Salesforce, Indiana’s largest tech employer, was an early and adamant opponent of the bill, saying he’d stop requiring people to travel to Indiana and would offer relocation assistance to employees who wanted to leave. Other businesses, like Angie’s List, followed suit, as did Apple’s openly gay CEO Tim Cook. Across the country, mayors and governors began restricting official travel to Indiana. Suddenly, it seemed, Indiana was caught in a cultural firestorm of its own making.
In a remarkably short period of time, Pence moved to cut his and his state’s losses. At his request, the legislature passed an amendment to the new RFRA to clarify that it could not be used to justify discrimination or denial of service to LGBT people. Pence’s insistence that such had never been the bill’s intent was belied by the reaction of the original bill’s supporters; one compared his signing the revised bill to Judas’s betrayal of Jesus.
Before the Indiana explosion, RFRA bills were seen as a safe route for politicians, writes The Washington Post’s Jeff Guo, because their impact is not always clear. “With the gay rights movement on the rise, and the possibility of nationwide gay marriage on the horizon, RFRAs have become one way for lawmakers to appease religious conservatives without committing too much,” wrote Guo. “To politicians, a RFRA is the best kind of promise: vague.”
After Indiana, that may no longer be the case, as RFRA bills have been publicly identified with the intention to discriminate. Mark Jones, chair of the political science department at Rice University, told Reuters that the LGBT community has “raised the costs substantially to passing this sort of legislation.”
In the wake of the Indiana explosion, Michigan Governor Rick Snyder said he would veto an RFRA bill and Oklahoma legislators stopped their push for an expanded RFRA, as did RFRA supporters in Nevada. Similar legislation may pass in other states—lawmakers have introduced RFRA bills in Louisiana and Texas in recent weeks—but even in conservative circles it’s clear that the ground has shifted.
Indeed, The New York Times’s Monica Davey and Laurie Goodstein report that religious conservatives and Republicans see what happened in Indiana as a “terrible blow” and a “major setback” in their effort to use “religious freedom” as “both a slogan and the legal answer to the growing gay rights movement.”
It may also have exposed a growing wedge on LGBT equality between the business community and the Religious Right. Bob Witeck, a consultant to many companies on LGBT issues, says that opponents of equality know that they’re losing and are trying to build “statutory walls” that allow them to claim space in the public square in which they don’t have to abide by nondiscrimination standards. But at the same time, he says, business leaders have become wary of messages that promote discrimination, understanding that being complicit in them can harm company reputations and bring business risks. And they know much better than they did a decade or two ago how such discrimination can affect their own employees and customers. Fights like the one in Indiana may build corporate support for a federal nondiscrimination law that would resolve these issues.
The right wing has been and still is active in state legislative sessions, says Isaacs, with a strategy to “portray themselves as martyrs and the LGBT community as bullies.” The right’s ongoing strategy to “put religion up against LGBT rights as competing values” frames the debate in a particular way, she says. But the Indiana backlash is evidence that “it turns out that not everybody buys it.”
Signorile adds that right-wing strategists, post-Indiana, are already “recalibrating their victim narrative” and attempting to create resentment against “big business” for siding with the LGBT community. (For an example, see Senator Ted Cruz’s rant against “the Fortune 500.”) The equality movement has more persuading to do, says Signorile. “We’ve used good tools that have been effective in the short term; the big thing we’ve got to get at is changing minds.”
The movement has already changed millions of Americans’ minds, as evidenced in the remarkable shifts in public opinion on marriage equality. Yet the battle is far from over. Although Arkansas Governor Asa Hutchinson made a show of asking the legislature to modify an RFRA bill that his son, among others, had objected to, the law he signed did not include the kind of nondiscrimination language contained in Indiana’s revised bill. And just weeks earlier, Hutchinson allowed another anti-gay bill to become law—one that bans municipalities from adopting nondiscrimination ordinances themselves. In North Dakota, an effort to ban anti-LGBT discrimination has been stopped in the state House after passing the Senate in February. To this day, most states have no statewide protections against discrimination on the basis of sexual orientation or gender identity.
Even with marriage equality ascendant in nearly all corners of the country, the fight for real equality is not over. The most serious threat the gay rights movement faces may in fact be what Signorile calls “victory blindness,” or “the dangerous illusion that we’ve almost won.”