The Supreme Court’s ruling striking down the Defense of Marriage Act last summer set off a chain reaction of federal judges ruling state bans on same-sex marriage bans as unconstitutional. But at the same time that same-sex marriage rights appear to be advancing, conservative legislators in more than a dozen states have been pushing for exceptions that would allow discrimination against gays and lesbians in the name of religious freedom.
“Religious freedom is a shield, not a sword,” says Nick Worner of the Ohio ACLU, paraphrasing George H.W. Bush appointed federal Judge Carol Jackson. “It’s not religious freedom when you’re using it to hurt someone else.”
Mississippi passed its religious freedom law in early April, the governor is expected to sign it.
Here’s a list of the laws that have been proposed or considered:
Arizona: Backers of Senate bill 1062 in Arizona say it will protect the religious from being discriminated against because of their beliefs. But what the legislation actually does, according to the Arizona branch of the Anti-Defamation League, is establish an exemption for businesses to discriminate — not just against gays and lesbians, but for any religious reason whatsoever. Under Arizona’s bill, the ADL says, a business owner could refuse to hire someone of a different religion, an employer could refuse to pay men and women an equal wage, or a cab driver could refuse a fare to a house of worship different from their own, as long as they say doing so would “substantially burden” their excercise of their religious faith. Alessandra Soler of the ACLU of Arizona said in a statement that “These bills are totally unnecessary — they offer a fix for a nonexistent problem. Arizona already has strong laws preventing interference with religious belief and practice.”The Democratic minority leader in the state senate, Anna Tovar, said Wednesday that “many Arizonans will find themselves members of a separate and unequal class under this law because of their sexual orientation.”
Status: The Arizona legislature passed the bill, but after substantial pressure from LGBT rights supporters, the local business community, and both Republican U.S. Senators from Arizona, Republican Governor Jan Brewer vetoed SB 1062 on February 26, stating that the bill was “poorly worded, and could result in unintended and negative consequences.”
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Idaho: House bill 426 in Idaho would prevent the denial or revocation of a professional or occupational license for someone who refuses services to, or makes employment decisions based on their religious beliefs. That means not only could say, a doctor deny medical care to a patient or an architect refuse to build someone a house based on their “sincerely held religious beliefs or exercise of religion,” but the state would be unable to revoke their license for doing so.
Status: The sponsor of Idaho’s bill withdrew his legislation in February. Leo Morales of the Idaho ACLU told msnbc that a “combination of pressure from the community and legislators opposed to the bill” had weakened its chances of passage.
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Georgia: Shortly after the Arizona bill was passed, a similar one began moving rapidly moving through the Georgia legislature. Like Arizona’s bill, it would allow broad religious exceptions to laws unless the state can prove that it is pursuing a “compelling interest” and it would allow someone being sued for discrimination to assert their religious views as a defense. Like Arizona, Georgia has no state laws banning discrimination against gays and lesbians but some cities and local jurisdictions do–and LGBT rights activists are worried that this bill would trump those local ordinances.
Status: Georgia Republicans launched a last-ditch effort to pass the bill on the last day of the session and failed.
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Kansas: For many Americans, it was Kansas’ proposal that first drew attention to the slate of religious freedom bills all over the country that would allow businesses to refuse to serve customers on the basis of sexual orientation. But critics say Kansas’ bill would go farther than that — by building its exemption around “sincerely held religious beliefs of the individual or religious entity regarding sex or gender,” straight people whose relationships don’t conform to those beliefs could find themselves discriminated against. An employer could also exempt an employee in such a relationship from benefits for married couples unless federal law says otherwise, and individual government employees could similarly refuse services — although the state government would be obligated to provide someone who was willing to provide the service in their stead. Supporters say the bill only creates exemptions for businesses if the service is related to same-sex wedding ceremonies or celebrations, but the wording of the bill is much broader.
Status: The bill is stalled in the Kansas state senate for now, but activists say it’s likely to return soon in some form. “I think they’re very committed to passing some kind of discriminatory bill and so they’re trying to do it in a way that doesn’t draw as much public notice or attention,” Eunice Rho of the ACLU said.
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Maine: An Arizona-style religious freedom bill was put forth in Maine that a state Democratic legislator said would “give the ability to discriminate against anyone if it violates their religious beliefs.”
Status: The bill was rejected by both houses in the state legislature in late February.
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Mississippi: Lawmakers in Mississippi sought to attach a religious freedom bill similar to the one vetoed in Arizona to a measure adding “In God We Trust” to the state seal. The Mississippi ACLU said the bill could “excuse any person from any state or local law that they claim “burdens” their exercise of religion.”
Status: Mississippi passed a pared down version of their religious freedom legislation in April, but anti-gay activists say it’ll be sufficient to allow businesses to discriminate against same-sex couples if they so choose.
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Missouri: A Republican lawmaker in Missouri has introduced a religious freedom bill similar to the ones being considered in Kansas and Georgia. Like those two states, Missouri doesn’t ban discrimination based on sexual orientation, although some local jurisdictions do.
Status: The Missouri bill has a single sponsor and it’s unclear how much support it has in the state legislature.
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Nevada: Last year, Nevada state legislators introduced a bill that would prohibit the government from being allowed to “substantially burden” a person’s “excercise of religion.” Nevada has laws barring businesses from discriminating on the basis of sexual orientation, so it’s not entirely clear what the Nevada bill would do. The state chapter of the ACLU however, has said that “Although the bill claims to protect the free exercise of religion, it could actually allow individuals to ignore our laws and discriminate based on their religious beliefs.”
Status: The bill, introduced a year ago, seems to be dead for now.
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Ohio: As with other bills, Ohio’s House bill 82, introduced last year, wouldn’t just apply to gays and lesbians. According to the ACLU of Ohio, it creates a general exemption for “religious employers” to state laws barring discrimination on the basis of “race, color, religion, sex, military status, national origin, disability, age, or ancestry.” The bill’s definition of “religious employer” however, includes not just houses of worship but for-profit businesses.
Status: The bill hadn’t really gone anywhere since it was introduced in 2013, and the bill’s sponsors withdrew the legislation after the outcry over a similar bill Arizona.
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Oklahoma: Oklahoma’s religious freedom legislation resembles the bills currently being considered in Arizona, Georgia and Missouri. Unlike lawmakers in other states, Its sponsor, Republican state Rep. Tom Newell has been straightforward about what it would do. Newell told the Associated Press, “I realize it’s a tricky thing, but I do think it’s something we need to look at, and people shouldn’t be forced to serve someone if it violates their religious conscience.”
Status: The political outcry over the Arizona law has convinced Newell to rewrite his bill, though it’s unclear whether any LGBT rights concerns would be alleviated. Newell told the Associated Press, “We’re still in favor of running a bill like that, but we’re just trying to get the language tightened up to prevent there from being any fiascos like there have been elsewhere.”
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Oregon: Conservative activists in Oregon are attempting to get a ballot initiative approved that would allow Oregon residents to vote to exempt businesses whose owners have religious objections to participating in same-sex marriage ceremonies or celebrations at the same time that they’re voting to approve same-sex marriage in the state. The Oregon proposal appears more limited in that the exemptions for businesses would only apply to “same-sex marriage ceremony or its arrangements,” rather than granting a license to discriminate more broadly. It is currently illegal to discriminate on the basis of sexual orientation in Oregon.
Status: Conservative activists are seeking to get their initiative on the ballot in the state this Fall.
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South Dakota: Republicans in South Dakota wanted to pass a bill that would have barred lawsuits against a business for “for refusing to serve a person or couple based on sexual orientation,” or against people who are “expressing their religious beliefs on the subject of sexual orientation.” The latter is protected by the First Amendment, but the former would have given state government approval to businesses that refuse to serve gays and lesbians.
Status: The bill appears to be dead for now, after being voted down in committee earlier this week.
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Tennessee: The proposal in Tennessee is virtually identical to the one that has run into trouble in Kansas.
Status: After losing a crucial Republican sponsor, the Tennessee bill appears to be dead.
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Utah: Legislators in the most conservative state in the Union are reportedly considering compromise bills that would ban discrimination on the basis of sexual orientation under most circumstances while creating religious freedom exemptions to that ban at the same time.
Status: The bills haven’t been introduced yet.
Adam Serwer