An overwhelming three-fourths of Americans identify as religious. Listening to some religious conservatives in the U.S., though, one might think believers were a persecuted minority on the verge of extinction. In the name of protecting the sincerely held beliefs of religious Americans, conservative lawmakers and lobbyists have introduced a spate of controversial religious-freedom legislation in recent months. But apparently Melissa McCarthy and Kristen Wiig aren’t the only ones fighting ghosts in 2016. The problems these bills claim to solve don’t actually exist.
In Tennessee, conservative legislators just passed a bill allowing counselors to refuse to provide mental-health services to patients if it would violate their “sincerely held religious belief,” which Governor Bill Haslam signed into law on Wednesday. The legislation was promoted by the Family Action Council of Tennessee, a conservative organization whose president once decried the American Psychiatry Association’s decision to remove homosexuality from its list of mental disorders. Opponents of the bill claim it allows discrimination against LGBT patients, particularly in rural areas where mental-health care is not widely accessible, but conservatives claim counselors’ freedom to live according to their convictions is at risk.
The bill is bold—it provides an explicit religious exemption for mental-health professionals who object to LGBT relationships and identity. But it’s unclear what has motivated it. In interviews, several Christian counselors across Tennessee and the heads of two national Christian counseling organizations said they didn’t know of any mental-health providers who felt their religious liberty was at stake.
“I do not personally know any counselor who will not see a gay person,” said Evon Flesberg, a pastoral therapist in Brentwood, Tennessee, and a counseling professor at Vanderbilt Divinity School. “I think this is the legislature trying to make a point rather than solve a problem.”
One reason for this is the industry’s practice of making referrals. Therapy-related religious-liberty challenges are rare, although one case recently came up in Michigan—Ward v. Polite. In it, a Christian counseling student named Julea Ward was expelled from Eastern Michigan University after she inquired about referring an LGBT patient who was seeking therapy regarding a same-sex relationship. The Sixth Circuit concluded Ward had been expelled due to “hostility toward her speech and faith.” According to the court, the American Counseling Association “does not prohibit values-based referrals like the one Ward requested.” Evidently, this is not the problem conservatives make it out to be.
This month, Tennessee conservatives also passed a bill that would make the Bible their official state book. Haslam vetoed the legislation because it “trivializes the Bible.” Lawmakers attempted to override the governor’s veto but failed. The purpose of a law is to protect citizens and solve social problems, but it is unclear how this bill would have achieved either of those goals. As conservative Christians decline as a share of the population, some feel the need to codify their religious beliefs into law as a last line of defense—this measure seems to be part of that phenomenon.
Tennessee is in good company with this kind of religion-related legislation. In February, Charlotte, North Carolina, passed an ordinance allowing transgender people to use public restrooms corresponding to their gender identity. The move infuriated conservative state legislators, who called the general assembly back to the capitol for a special session to overrule the Charlotte ordinance and prevent any local government in the state from passing its own non-discrimination measures. The controversial move made North Carolina the first state in America to legally require its residents to use bathrooms and locker rooms corresponding to the gender on their birth certificates.
Why would conservatives take such drastic measures to block transgender access to certain restrooms in a single city? According to Republican Governor Pat McCrory, the ordinance would “create major public-safety issues.” Some politicians, like McCrory, maintain these laws allow transgender women—whom they often stubbornly refer to as “men”—to sneak into bathrooms and endanger the privacy and safety of “mothers, wives, and daughters.” As the Charlotte-based Christian writer Frank Turek put it, “The danger is real from sexual predators in women’s restrooms.”
These arguments are based on stereotypes claiming transgender people are unstable and dangerous perverts. They drum up fear by portending imminent danger to vulnerable family members and friends. But, worst of all, they are false. There is no credible data suggesting transgender people assault women in bathrooms. Of the 200 municipalities and 18 states that currently have nondiscrimination laws, “none of those jurisdictions have seen a rise in sexual violence or other public safety issues,” according to a coalition formed in opposition to North Carolina’s measures. One study of 17 public school systems that allow transgender students to use the bathroom of their choice found no reports of “harassment or inappropriate behavior.” On the contrary, transgender people seem to face a higher risk of assault: A 2013 study showed they report significant levels of discrimination and harassment when trying to use public restrooms.
But set aside the lack of evidence for conservatives’ core argument for a moment. All indecent behavior that was illegal prior to passing these bills will remain illegal upon implementation. It defies logic to suggest that violent predators who intend to commit sexual crimes are waiting for city-council bathroom ordinances to do so.
Conservatives’ biggest fears concern the marketplace. Even before gay marriage became legal in the United States, conservatives argued that small businesses—from cake bakers to wedding photographers—should be allowed to refuse to provide creative services to same-sex-wedding celebrations if doing so would conflict with their religious beliefs. It is true that several courts have ruled against Christian business owners who’ve attempted to deny wedding services to LGBT customers. But these decisions have come down in states that have public-accommodation laws that prohibit discrimination on the basis of sexual orientation and gender identity. In most of the states where these bills have been recently proposed or passed, no such laws exist. In Mississippi, for example, a religious-freedom law was just passed, even though business owners in that state were already entitled to refuse service to a gay or lesbian person.
This hasn’t prevented conservatives in various states from passing laws attempting to shield people who wish to avoid participating in these weddings. Perhaps the most interesting versions of this are the so-called “Pastor Protection Acts,” passed in Florida and Texas and part of a bill recently vetoed in Georgia. But clergy are not currently being forced to perform LGBT weddings against their will. In fact, the U.S. Constitution already provides this protection. American law sufficiently shields pastors and houses of worship against government interference. There is no indication in Supreme Court decisions, state or federal legislation, or otherwise that this will change. Consider, for example, that the Civil Rights Act was enacted more than 40 years ago, but it remains legal for pastors to refuse to perform mixed-race weddings.
All of this begs a looming question: Why would social conservatives fight so hard to enact legislation to “solve” non-existent problems? The answer seems to be “fear.” For conservatives—and particularly the Christians among them—the last decade has been marked by a wave of withering defeats. Christian ideals are less culturally dominant than they once were, a growing number of people are bailing on institutional religion, and most Americans believe even the “attempt to convert others” to your faith is extremist behavior. For those who oppose LGBT rights, the Supreme Court delivered a harsh blow less than a year ago when it legalized same-sex marriage nationwide. As American culture and politics shift, many conservatives worry that America is tumbling down a slippery slope of immorality.
Fear is a primal and powerful motivator, but conservatives should ask themselves whether the way they are addressing their fear is the best way forward. States that have chosen to enact religious-liberty laws have faced corporate boycotts, tourist backlash, and event cancellations. Perhaps worst of all, conservatives’ efforts may end up creating a self-fulfilling prophecy. By using religion to promote what many Americans consider to be bigotry, they are inciting the very kind of resistance to religion they fear is inevitable. Their religious-freedom fights often earn them nothing—but may cost them everything.
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