Why Fixing ‘Religious Liberty’ Bills Is Good For LGBT Equality, But Not Nearly Good Enough

CREDIT: AP Photo/Doug McSchooler

Protesters rallied against Indiana's RFRA at the State House last Saturday.

The past two weeks have been a boon for the LGBT equality movement, perhaps surprisingly so. Spurned by Indiana’s enactment, Arkansas’ passage, and Georgia’s almost-passage of a law named the “Religious Freedom Restoration Act” (RFRA), major national corporations — and the American people — condemned what were clear attempts to make it easier to discriminate against LGBT people. The consensus rejection of these bills, as they were written, reflects a national populace that opposes discrimination so much that most Americans don’t know that LGBT people aren’t already protected from it.

But with Georgia’s bill dead, Arkansas’ bill replaced, and Indiana’s law “fixed”, anti-LGBT discrimination is allowed to persist in all three states. Though many cities have civil rights laws that include protections based on sexual orientation and gender identity, only 17 states offer such protections statewide (four more protect sexual orientation only). No such protections exist under federal law; Congress has failed to pass protections even just for employment — even with broad religious exemptions.

The defeats and revisions this week represent a victory for LGBT equality, but it’s a victory in a single battle in an ongoing war. The fight is hardly over, and opponents are not going quietly into the night. The defensive posture they are taking this week portends what lies ahead.

First, consider the many groups that opposed the fixes to Indiana’s bill this week. They continue to admit that their intention is to allow for discrimination against same-sex couples. On Thursday, the Family Research Council (FRC), The Heritage Foundation, and Alliance Defending Freedom (ADF) all condemned the fix, some going as far as calling on Gov. Mike Pence (R) to veto it. Though they use a distorted definition of discrimination, their constant reference to religious business owners who they think should be allowed to refuse service to same-sex couples indicates their clear intentions. A campaign to support the Indiana pizza shop that publicly declared it would refuse service for a same-sex wedding has already raised hundreds of thousands of dollars.

Even conservatives’ other talking point — falsely equating Indiana’s RFRA with what was passed by other states years ago — still subtly points to a disconnect between privileging religious beliefs and protecting LGBT people. Earlier this week, Heritage posted an interesting map, showing states that have both a “Religious Freedom Restoration Act” and LGBT protections:

Heritage Map - RFRA and LGBT Protections

CREDIT: The Daily Signal

Only four states had both: New Mexico, Illinois, Connecticut, and Rhode Island. That means that with Indiana and Arkansas, there are now 19 states that have a RFRA but no LGBT protections and 14 states that have LGBT protections but no RFRA. New Mexico is the only place where one has been tested against the other, and the state Supreme Court unanimously ruled that its RFRA does not allow for anti-gay discrimination, specifically because of how narrowly it was written.

Despite this week’s RFRA victories, anti-LGBT bills are still advancing in many states, including other RFRAs as well as bills that are much more explicitly intended to limit LGBT people’s freedom, whether it’s a transgender person’s basic access to restrooms or a same-sex couple’s expectation of service from a state-subsidized adoption agency. After announcing Wednesday that his RFRA was dead, Georgia Sen. Joshua McKoon (R) tried to add it to a different bill on Thursday — the effort failed. On Thursday, a Florida House Committee advanced a “license to discriminate” for adoption agencies. North Dakota lawmakers just defeated a bill to create nondiscrimination protections based on sexual orientation. In Kansas, a bill to allow college student groups to discriminate is gaining steam, while in Texas alone, there are still 20 anti-LGBT bills awaiting consideration.

Meanwhile, perhaps feeling backed into a corner by the backlash, the people who normally say bad things about LGBT people are actually saying worse things than usual, in many cases portraying them as aggressors while inciting panic. Mike Huckabee is warning that the gay community won’t stop “until there are no more churches, until there are no more people who are spreading the Gospel.” Mat Staver of the Liberty Counsel compared the LGBT movement to terrorists, “people who have a zero-sum game and they don’t want you to exist… If you do exist, they want you to promote and applaud their sinful lifestyle.” Pat Robertson similarly expects that everyone will be forced to like anal sex and bestiality, with Colorado Rep. Gordon Klingenschmitt forecasting that 20 percent of Americans will be recruited into homosexuality over the next hundred years. Glenn Beck predicts concentration camps, but rather than slaughter, Bryan Fischer is worried that “the homosexual lobby” will compel people into submission: “That is involuntary servitude. That is slavery.” A sitting Senator, Tom Cotton (R) of Arkansas, is telling gay people to chill out and just be glad they aren’t being executed like they are in other countries. shared this graphic to suggest just how scary the LGBT movement is:

LGBT Wolf in Sheep's Clothing

CREDIT: Twitter/

The real question of what happens next for the LGBT community is whether the momentum from the successful defense against RFRA can persist as a successful offense to create more LGBT protections across the country in employment, housing, public accommodations, credit, health care, and education. If national corporations are truly committed to states’ not discriminating, they must not settle for these fixes that, at best, maintain the status quo. Instead, they must keep the pressure on, urging states to actually ensure against discrimination rather than just stepping back their efforts to enshrine it. Angie’s List is setting a clear example, rejecting Indiana’s fix as “insufficient” and following through on its threat not to expand there.

Even if momentum grows to pass these LGBT protections — an eventuality handicapped by how little time is left in many state legislative sessions this year — there will be attempts to undermine the breadth of those exceptions. Already, some are suggesting Utah’s recently passed LGBT bill as a model for other states, including the Baptist Joint Committee for Religious Liberty and presidential hopeful Jeb Bush. The Utah bill contained huge religious carveouts allowing religious organizations to continue discriminating against the LGBT community. It serves a poor model for other states because using it as such would ignore a principle at the core of LGBT advocacy.

LGBT people want to be treated equally in society. Besides the issue of same-sex marriage, they want to be able to hold the same jobs, rent the same apartments, access the same credit, pursue the same education, and, yes, buy the same cakes as everyone else. In most states, they still can’t. Until a federal law and/or laws in all 50 states are passed protecting the classes of sexual orientation and gender identity, LGBT people won’t be equal. Additionally, if those laws contain exemptions for religious organizations to continue discriminating — exemptions that don’t exist for other protected classes like race — LGBT people will still be treated as second-class citizens. If political leaders like Pence, or any presidential contenders for that matter, want credit for “opposing discrimination,” uncompromising support for passing these enumerated protections is the standard they must be held to.

Incidentally, it has been Freedom Indiana, the organization fighting on behalf of Indiana’s LGBT community, that has held this standard from the beginning. To truly “fix” Indiana, the organization has called on lawmakers to not only clarify RFRA so that it cannot allow for discrimination, but to pass comprehensive employment, housing, and public accommodation protections for LGBT Hoosiers statewide. Acknowledging that “the harm has been lessened,” Freedom Indiana Campaign Manager Katie Blair pointed out that the RFRA changes “fall short in many ways, and our work is far from over.”

Indeed, with the nation newly incensed by the mere possibility of discrimination against LGBT people, that work might finally yield full nationwide LGBT equality.