Conservatives are desperate to find loopholes to ban gay marriages. Will they succeed?
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It’s hard out there for a gay marriage opponent: More people than ever support same-sex marriage, and more and more states are jumping to legalize it. Which is why the anti-gay marriage set is scrambling to cook up creative ways to keep themselves removed from this new reality. Lately, this has taken the form of measures to carve out “religious liberty” exemptions for businesses that refuse to serve same-sex couples.
The argument goes something like this: If discrimination against gays and lesbians is rooted in a deeply held religious belief, then it is protected under the First Amendment. This logic will be tested in Oregon in November, when voters will decide on two ballot measures, one to legalize same-sex marriage, and one to implement a law “to exempt a person from supporting same-sex ceremonies in violation of deeply held religious beliefs.”
The initiative, proposed by a group called Friends of Religious Freedom, is in response to a high-profile investigation by the state labor commissioner into a bakery’s refusal to provide a cake for a lesbian wedding. The couple had filed a complaint with the state, arguing that this was in violation of a 2007 law that bans businesses from discrimination based on sexual orientation. The ballot measure, if approved, would exempt people from this law.
Teresa Harke, of the Friends of Religious Freedom, told Reuters that the measure is meant to make sure that opponents of same-sex marriage “are not going to be discriminated against or be silenced for declining to participate in same-sex weddings.”
If this argument sounds familiar, it’s because it’s not unique to those who oppose same-sex marriage: Religious exemptions have been sought in the fight against Obamacare’s contraception mandate, and “religious liberty” has been claimed as a justification for anti-gay speech and actions during debates over anti-bullying measures.
As gay and lesbian couples win the right to get married all over the country, this argument is being trotted out in cases associated with the cottage industry of wedding-related services and products. As in Oregon, gay and lesbian couples who have in the past been denied services have in turn filed complaints, usually discrimination lawsuits, and often successful ones: A Colorado cake-maker was ordered by a judge to serve gay couples or face potential fines. In New Jersey, a church lost a court battle after denying a lesbian couple the use of its pavilion for their civil union ceremony. And, in New Mexico, the state Supreme Court ruled last year that a photography studio violated the state’s anti-discrimination law by refusing to take pictures of a commitment ceremony for a same-sex couple. That case has been appealed to the Supreme Court.
(Notably, in each of these cases the business owners have been represented by attorneys for the Alliance Defending Freedom, an anti-gay legal group and a Fox News favorite that has had its hand in many anti-gay marriage court battles—including Prop 8—as well as other litigation brought by conservatives, such as the lawsuits over the Obamacare contraception mandate. The “religious liberty” argument comes up in one form or another in many of their cases).
Beyond Oregon, lawmakers in other states are moving quickly to pass laws that create a buffer against these lawsuits, such as in Arizona and Kansas.
South Dakota State Rep. Steve Hickey, a Republican, introduced a bill last month that would allow anyone to “decline to provide certain wedding services or goods due to the free exercise of religion,” though at the moment same-sex marriage is not legal in the state. In an interview with the AP, Hickey made the rather bizarre and somewhat nonsensical argument that “Religious rights need to continue to trump gay rights. Otherwise, we’re heading down the road of Iran, where it’s convert or die, be quiet or die.”
At the federal level, Republicans in both the House and the Senate proposed legislation last year to provide anti-gay discrimination with similar legal cover to do the same.
“This is not a sideshow issue,” James Esseks of the ACLU told Reuters. “This is going to be the issue that we fight about for the next ten years, at least, in the (LGBT) rights movement.”