The debate over same-sex marriage is largely over, but the next set of political battle lines between gay-rights advocates and social conservatives already is taking shape.
The Supreme Court's ruling on marriage equality was sweeping and unequivocal, definitively settling—as a matter of law—a decades-long political debate. There's not much critics can do, in the long run, to undermine the high court.
Some conservative state officials are resisting, but a little bit of immediate foot-dragging was seen as inevitable and wasn't expected to last. And it's already starting to fade; a federal appeals court Wednesday told judges in Louisiana, Mississippi, and Texas to hurry up and abide by the Supreme Court's ruling.
"It's just a matter of time. I think most people see the rebellion as relatively minor in the scheme of things," Fordham University law professor Elizabeth Cooper said.
But a good preview of the next front in the political debate over gay rights took place in March—just a few days before the Court heard oral arguments on same-sex marriage—when Indiana Gov. Mike Pence signed, then retreated from, a controversial "religious-freedom" bill that critics say could have led to greater discrimination against gays and lesbians.
Nondiscrimination policies will be the next big battleground for gay rights, advocates and legal experts say. Gay-rights advocates will press for state and federal laws prohibiting discrimination on the basis of sexual orientation. Conservative state officials, by contrast, likely will advance bills similar to Indiana's that offer business owners greater legal protections if they turn away gay customers.
"We will have to work to win more state and local nondiscrimination measures, both because they provide important protections themselves and they are building blocks to the federal law we need to see," said Evan Wolfson, the founder and president of Freedom to Marry.
Discrimination on the basis of race and sex is illegal, but protections based on sexual orientation are still a patchwork. Discrimination on the basis of sexual orientation—in areas including housing, employment, and public accommodations — is legal in 28 states, according to the Center for American Progress.
That means that, while same-sex couples can legally marry in those states, they could still lack legal recourse if they're fired or denied a job because of their sexual orientation. And they wouldn't have a clear-cut case if, for example, a wedding vendor refused to serve them.
And while gay-rights advocates are lobbying for broader nondiscrimination laws in those 28 states, with the goal of ultimately winning federal protections, at least some socially conservative state legislatures likely will advance measures that move in the opposite direction.
Indiana, for example, was the 20th state to pass a version of the federal Religious Freedom Restoration Act.
State RFRAs have, on many occasions, worked well to protect religious minorities in situations that had nothing to do with gay rights. But over the past few years, as the tide began to turn in favor of same-sex marriage, some states began looking toward their RFRAs to shield business owners from discrimination lawsuits when they refused to serve gay customers, based on their religious objections to homosexuality or same-sex marriage.
(The most common examples have to do with weddings—for example, allowing a conservative Christian florist to say she won't do the flowers for a same-sex wedding, without the threat of a discrimination lawsuit.)
Indiana's proposal would have had that effect, legal experts said, until Pence signed a "fix" that said the law could not be used to justify discrimination against same-sex couples.
Advocates expect to see at least some effort in conservative states to pass religious-freedom measures that would allow businesses to refuse gay customers—but not necessarily a nationwide trend.
"There's always going to be a backlash to an extension of law. It sometimes feels like a principle of physics," Cooper said. "But I'm convinced that we have reached a point of real change in this country."
At least this year, opponents have been pretty successful fighting state RFRAs. Pence agreed to amend Indiana's version amid public pressure from the NCAA, along with a slew of other business interests, and opposition from Wal-Mart helped convince Arkansas Gov. Asa Hutchinson to demand changes to a similar bill in his state.
But despite the changes to Indiana's RFRA—even if that law never passed in the first place—discrimination on the basis of sexual orientation is still legal in most of the state, because it does not have a statewide non-discrimination ban.
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