As state legislatures around the country move to enact marriage equality and civil unions, an anti-gay Christian legal and policy coalition calling itself the Alliance Defending Freedom (ADF) has become a ubiquitous presence at committee hearings. But their misleading testimony in defense of the right to discriminate has done virtually nothing to advance their cause — and may even undermine it.
As the Delaware Senate debated a marriage equality bill earlier this month, opponents brought ADF senior counsel Jordan Lorence to the floor to offer testimony. Lorence noted a case in New Mexico (a state which don’t even allow same-sex marriage), in which an anti-gay vendor had faced legal action after violating state civil rights laws, and suggested that he believes such public accommodations laws are unconstitutional. “It’s the business owners that deal with weddings. It’s licensed professionals having their licenses threatened because they believe the wrong things about marriage,” he told the Senators.
Delaware state Sen. Dave Sokola (D), lead Senate sponsor of the bill, told ThinkProgress that Lorence’s right-to-discriminate arguments actually helped solidify support for the bill:
We had recently added “sexual orientation” to our non-discrimination statute in 2009, and debated and passed Civil Unions just 2 years ago. Even with a large turn-over in both the House and Senate, this issue was very fresh in many of our minds. Equality Delaware did a tremendous outreach to all, with a special emphasis on our newer legislators, so there was sufficient understanding of the matter, and I do think he just firmed up the positions of all on the prevailing side. We also now have a 4-year track record of how Delaware businesses are doing with respect to this, and the predictions of our opponents have not come true since we enacted either of the previous bills. The facts have significantly diminished their credibility.
Lorence also made this argument to the Delaware House of Representatives. Sokola’s House counterpart, Rep. Melanie Smith (D), told ThinkProgress: “I believe he was mistaken in much of what he said and misrepresented the bill significantly.” She added that as far as she knew, “no votes were swayed by his testimony.” The bill passed both chambers and was signed into law by Gov. Jack Markell (D).
Lorence also offered similar testimony in 2011 before the Maryland House Judiciary Committee, warning that “small businesses that decline to serve or participate in same-sex ceremonies could be sued for discrimination by a public accommodation,” ignoring the fact that Maryland law had prohibited such discrimination since 2001. The committee recommended the bill and voters enacted the law last year.
In Rhode Island, ADF dispatched litigation counsel Kellie Fiedorek to make the same arguments before the Senate Judiciary Committee. She warned that bigots in Rhode Island would have “a choice that no one should ever have to face — to either violate your conscience or face legal persecution,” and claimed that laws “expanding a sexual agenda have been used to persecute regular, everyday Americans.” She failed to note that Rhode Island too has banned discrimination in public accommodations since 1995 — a point noted by Sen. Dawson Tucker Hodgson (R). Taking her argument at face value, those with sincere beliefs would have a constitutional right to refuse service at restaurants, hotels, or department stores based on race, religion, gender, or other currently protected traits.
Watch her testimony here:
Rhode Island State Rep. Arthur Hardy (D), sponsor of the marriage bill, told ThinkProgress that these claims were really about “reopening settled policy,” adding, “I don’t think it caused anyone to switch sides.” Rhode Island’s legislature passed the law and Gov. Lincoln Chafee (I) signed it the same day.
ADF testimony in Minnesota, Colorado, and Washington all failed to sway legislators. Asked whether ADF believes its tact has been effective or swayed any lawmakers’ votes, legal counsel Jim Campbell told ThinkProgress: “First Amendment-protected freedoms are vital to the continued flourishing of our constitutional republic. They should not be ignored by state legislators who vote to redefine marriage. The failure to respect freedoms long-enshrined in our Constitution will lead to needless litigation. Sadly, even when those rights are eventually vindicated in court, the legal process will take a significant toll on innocent citizens who are simply trying to live in accordance with their conscience. Alliance Defending Freedom will be at the forefront of defending those Americans.”
While the constitution protects the rights of individuals to hate anyone they choose, there is no constitutional right to discriminate. Those withholding public accommodations based on sexual orientation — or any other protected category — can hardly be described as “innocent.”