“The hot spots right now are going to be the purpleish states—the ones where, when you eyeball them, you say, why the hell didn’t you already have a non-discrimination protection in the law?” she said. “I think it would be shocking to many people to even realize that they didn’t have those protections already.”
Even in the “purpleish” states, though, this kind of compromise is a difficult political proposition, because “the legislators themselves are hostages to a constant culture war,” as Wilson put it. States “can’t compete economically without these protections in state-wide law,” she said, and they risk facing boycotts like those that hit Indiana last spring if they go too far in accommodating religious objections.
Religious-freedom protection, though, has also been a big concern among legislators and their constituents in the past year. At least 26 states considered some sort of new religious-freedom-protection bill during the 2015 legislative session or will do so in 2016. Some bills, like New Mexico’s, seek to expand existing religious-freedom protections to businesses, so that owners can choose not to provide goods and services “in a manner inconsistent with adherence to that person's sincerely held religious belief.” If passed, such laws would go well beyond the kind of religious-freedom protections that roughly half of states have on their books: They would specifically allow people or businesses to discriminate against LGBT people, so long as that discrimination was putatively premised on a religious belief.
This kind of bill raises the question: What does it actually mean to have a religious objection to an anti-LGBT-discrimination law? Several kinds of objections have been raised in legislatures and the media over the past year, but not all of them carry equal legal weight.
One distinction is between for-profit businesses and religious non-profits. Indiana’s draft bill allows businesses with fewer than four employees to refuse to serve gay weddings if they have a religious objection, for example. Historically, NeJaime said, it’s been rare for commercial businesses to get such broad exemptions from discrimination laws, and “it's a testament to how successful conservative organizations have been that they've made those discussions so mainstream.” Such exemptions would theoretically protect restaurant owners who refused to serve a gay couple for religious reasons, for example, or a company that refused to hire a person who is transgender.
Many of the high-profile religious-freedom-objection cases following the legalization of same-sex marriage have involved businesses like bakeries, flower shops, and photographers, but so far, those claims haven’t gained much legal traction. Broad religious exemptions granted to businesses by legislatures might not hold up in court, either. “When push comes to shove, it is hard to explain why … someone, based on their private sexual conduct in their home, can’t work at FedEx,” Wilson, the professor at Illinois, said.