Can States Protect LGBT Rights Without Compromising Religious Freedom?

Same-sex marriage has made it easier to discriminate against gay people in the U.S. In 2016, legislatures will take on this issue, but the fights may get nasty.

Lucy Nicholson / Reuters

Twenty-eight. That’s the number of states where it’s not against the law to discriminate against a gay person who’s looking for an apartment, applying for a job, or buying something from a store. Five more states have protections, but with exceptions: New York, New Hampshire, and Wisconsin don’t forbid discrimination against transgender people, for example, and Massachusetts and Utah don’t protect all LGBT people in all situations in which discrimination might arise. The federal government does not protect against this kind of discrimination, either, except in limited cases. Although Democrats have proposed legislation that would change that, the chances of it successfully sliding through a Republican Congress in an election year seem slim.

The irony of gay marriage becoming legal in the United States is that it has made discrimination against LBGT people easier. For example: Many newlywed couples may be asking their employers for spousal benefits for the first time. Depending on where they live, it may or may not be illegal for that employer to respond by firing them—something that happened in a number of states in 2015. Some state legislatures have tentatively taken on this issue; Pennsylvania and Idaho, for example, both saw bills introduced in 2015. But in many places, these efforts are complicated by a tangled political question: Should these laws make exceptions for religious individuals and organizations that object to employing and providing services to gay people?

This question could produce some of the biggest political fights of 2016. Gay-rights advocates are planning to push hard for discrimination protections, while religious-liberty groups continue to raise concerns about protecting people’s freedom of conscience. Meanwhile, state-level legislators are caught in the middle, no longer able to avoid a contentious set of issues many would rather have ignored.

In Indiana, a draft bill outlawing discrimination, which also offers exemptions for some religious objections, is scheduled for a first reading this week in the Senate. After the state took a political beating last spring for a wide-ranging religious-freedom-protection proposal, many businesses threatened to boycott the state. LGBT organizations are preparing to invest money and advocacy resources there. A renewed political fight was coming to the state, even without the Republican proposal. “It's smart for them to initiate the discussion,” said Doug NeJaime, a law professor at UCLA. “They're going to put out the first model.”

Battles are also looming in other states. Matt McTighe, the executive director of the LGBT-rights organization Freedom for All Americans, said his group will be putting between $3 and $6 million toward anti-LGBT-discrimination campaigns in Arizona, Florida, Georgia, Indiana, and Pennsylvania next year, as well as an effort to make LGBT protections more comprehensive in Massachusetts. (His group is modeled after Freedom to Marry, one of the organizations that successfully pushed for gay-marriage legalization in the years leading up to Obergefell.) Another LGBT-rights organization, the Gill Foundation, is specifically pushing for legislative change in Florida. Jennifer Pizer, a senior counselor at Lambda Legal, said her organization will also be investing money in similar campaigns.

For the most part, these groups are not heading into these states intending to make concessions to religious groups. “There is frequently a starting assumption from many people of good will that there should be a compromise—that adoption of protections for gay and transgender people should be accompanied by religious exemptions for people who disagree,” Pizer said. This is not a sufficient rationale, she argued. “When a person or an institution is engaged in commercial activity, engaging with the general public, then they should treat all members of the general public equally.”

“The hot spots are going to be the purple-ish states—when you eyeball them, you say, why the hell didn’t you already have non-discrimination protection?”

But for some legislators, like the Republicans in Indiana, compromise seems the only politically viable option. Unfortunately for them, there are very few legislative models available—the only state that has passed a similar arrangement is Utah. Robin Wilson, a law professor at the University of Illinois who helped get the Utah bill passed, has been traveling around the country talking to legislators. She says she’s heard a lot of interest and sees potential for action in 2016, particularly in places like Arizona, Idaho, Indiana, and Ohio.

“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.

“We’re trying to get 80 percent of the market, and 80 percent is better than zero.”

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.

Religious non-profits, though, are somewhat different. Exemptions granted to such groups would cover organizations from Catholic schools to evangelical adoption agencies—institutions that see their work as specifically religious in nature, or that are directly tied to a religious body. A few states have tried to pass bills specifically protecting these groups. Michigan, for example, passed a law in June making it legal for faith-based adoption agencies to refuse to place babies with prospective couples on religious grounds, even if they get money from the state. Or, in a somewhat different vein, North Carolina passed a law protecting judges from having to officiate gay marriages. Indiana’s bill provides broader exemptions, allowing religious organizations to prioritize the hiring of certain people based on their religion or to require their employees to live in accordance the tenets of their faith, including those related to sexuality.

Wilson sees a strategic advantage for legislators in creating exemptions for these organizations. In Utah, for example, “one of the things that allowed that compromise to happen was [LGBT groups] didn’t try to rattle every cage,” she said. “They said, ‘We’re trying to get 80 percent of the market, and 80 percent is better than zero, and we’re not trying to alter the faith character of faith communities.’” The goal wasn’t to change a group like the Boy Scouts; the goal was to make sure LGBT people can work at any for-profit company or find housing without harassment. If legislators forgo exemptions for religious non-profits, she argued, there could be negative consequences for the people they serve: “If you don’t give these adoption and social-services agencies a way out, they’ll close.” After gay marriage was legalized in Massachusetts, for example, “Catholic Charities of Boston closed their adoption and social-services agency after [more than 100] years.”

Not all religious groups want exemptions from these laws.

These kinds of strategic calculations have often been obscured by other kinds of religious objections that have come up since the legalization of gay marriage. In the past year, many legislatures have attempted to pass so-called clergy-protection acts, ensuring that religious leaders won’t be penalized for refusing to conduct gay weddings. This is a legal red herring. The Constitution already protects rabbis, preachers, and imams from performing religious marriages that are not in accordance with their faith. The Kim Davis controversy in Kentucky also brought a lot of attention to the question of whether clerks and other state officials should have to solemnize gay weddings. But “Kim Davis … is probably the most awful poster child for religious liberty that anybody could conceive of,” Wilson said. In trying to prevent any of her employees from signing off on gay marriage, she said, Davis “wanted to erect a road block on the path to marriage” which went beyond her individual objection of conscience.

Another reason why these compromises may be so difficult is the immense diversity of religious groups and their positions. In Indiana, for example, a number of clergy have actively championed discrimination protections for LGBT people—not all religious groups want exemptions from these laws. And on the other side of the spectrum, Wilson said, she has encountered conservative Christian groups like the Family Research Council that believe “it is not loving to provide any [protection against LGBT discrimination], because it’s not loving to allow gay people to be gay.”

Those are not the people who will be persuaded to engage with the kind of compromise that Indiana will consider this year, she said. So who will? The LGBT organizations that are pouring money into these protection efforts? The religious charities that fear the choice between closing down and operating in a way that they say violates their beliefs?

Both sides have a lot to lose from inaction. But they also have the opportunity to shift the public debate away from largely symbolic gestures, like clergy protection acts, and toward issues that affect the daily lives of millions of Americans. “There’s a whole lot of groups now, that are on the religious right, rethinking their Christian witness about what it means to be good to our gay neighbors,” Wilson said. “Jesus, or whoever your faith figure is, would not be standing up for the idea that a person should never have a place to live, or not have a job, or a livelihood, or a way to support their families.”

Anti-discrimination laws, in the end, are not about re-litigating the definition of marriage, nor condoning homosexuality. They’re about protecting LGBT people from being fired, evicted, and turned away from diner counters, especially now that they’ve won the bittersweet right to live their relationships fully in public.