Religious Freedom Efforts: Next Front Opens in Battle on Gay Marriage

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President Donald Trump gives a thumbs-up as he and Jared Kushner depart the White House in Washington, D.C., on March 15. Trump has wavered on how to move forward on religious freedom proposals, after pressure from LGBT advocates. Kevin Lamarque/REUTERS

South Dakota has become the first state to approve a religious freedom law in 2017, protecting faith-based adoption and foster care providers from discrimination laws if they choose not to allow same-sex couples to adopt. Other states are already following with similar efforts.

Even as the Trump White House grapples with how to move forward on religious freedom laws—a top priority for some of the president’s evangelical supporters—state-level lawmakers are pursuing dozens of pieces of legislation that would accomplish similar goals: allowing individuals or groups to cite their religious beliefs while refusing services to people. "I think states probably feel freer to pursue this type of legislation because, candidly, during the Obama administration, states knew that when they passed this type of legislation there was a great possibility that the Obama administration would come after them," says Matt Sharp, senior counsel at the Alliance Defending Freedom, a group that supports the religious freedom laws.

Related: LGBT groups brace for Trump religious freedom executive order

In many states, however, they are running up against some of the same legal and political obstacles the White House encountered as it weighed an executive order on religious freedom. The approach in South Dakota—targeting one discreet sector—may be a sign of how proponents of these bills are adapting. "I do think there’s quite a bit of experimenting. It’s the lab of democracy, the states are," says Sharpe. And "there is some wisdom to the incremental approach," he adds, focusing on "particularly vulnerable" populations—like faith-based adoption agencies—that rely particularly heavily on state funds. In both South Dakota and Michigan, which passed a similar law in 2015, supporters of those laws could point to groups they claimed had been hurt by existing discrimination laws.

Supporters say these laws are necessary to protect the rights of those who believe, among other things, that marriage is meant for only a man and a woman. Critics, including the LGBT advocates and civil liberties groups, say such laws promote one type of religious belief over another (a violation of the Establishment Clause of the Constitution) and proponents are simply seeking a license for discrimination. What’s clear is the push for religious freedom or religious exemption laws has grown in parallel with the legal recognition of gay marriage.

The same year that the Supreme Court legalized gay marriage in the U.S., Indiana drew national headlines for enacting its Religious Freedom Restoration Act, which would allow individuals or groups to get special permission for exemptions from discrimination laws. The fierce backlash from the local and national business community ultimately prompted state Republicans—led by the governor at the time, Mike Pence, who is now U.S. vice president—to amend the law. And just days before the 2015 Supreme Court decision came down, Republicans in Congress introduced an even more sweeping piece of legislation, the First Amendment Defense Act, which would create blanket religious exemptions in the law. It has been stalled on Capitol Hill.

That hasn’t stopped state legislators from introducing similar versions. Last year, Mississippi passed one such law, though it was quickly blocked by a judge and is currently tied up in the courts. And Republican lawmakers in Texas have introduced their own First Amendment Defense Act in the legislature this year, on top of a slew of other religious freedom bills. However, Sharpe says many state leaders are hesitant to support such legislation until the Mississippi court case is resolved, which could take one or two more years.  The proposals that seem to have better prospects for moving forward in a handful of states this year are those that are more narrowly targeted, like the South Dakota adoption law.

The American Civil Liberties Union, for example, is closely watching similar legislation in Alabama, SB 145, that would grant faith-based “child placement agencies” that deal in adoption and foster care an exemption from discrimination laws. Senate Republicans there have identified it as a priority for the legislative session. In Oklahoma, lawmakers have proposed a bill, SB 197,  that would grant an exemption for those providing services, goods or facilities for a marriage or other “celebration of a specific lifestyle or behavior.” The bill was passed by the state Senate’s Judiciary Committee in late February and is pending action on the Senate floor.

Some observers say the political prospects for those types of bills are better because they don’t generate the type of uproar states like Indiana or Mississippi have encountered with their more sweeping laws. ACLU Advocacy and Policy Counsel Eunice Rho suspects that because the South Dakota adoption law is a single-issue bill, it “hasn’t quite captured the public outrage that these kinds of broadly written bills do.” And Rho believes it’s part of a strategy conservative lawmakers are using to try to pass comprehensive religious exemptions in a piecemeal fashion. 

There’s also a certain amount of political opportunism involved in tackling religious freedom piece by piece. In Texas, for example, some lawmakers have looked to promote religious freedom proposals tied to the hot policy debates of the moment. “We’ve had a crisis here recently on child protective services and foster care and there’s a bill that seems targeted at foster care,” notes Jim Henson, a professor who directs the Texas Politics Project at University of Texas. Some lawmakers also tried (and failed) to attach an adoption and foster care religious exemption to the child protective services legislation the state House recently passed.

But Texas is also an example of the challenges facing these various religious freedom proposals, even in a Republican-dominated state. GOP lawmakers have introduced nearly a dozen bills in this legislative session to institute religious exemptions of some sort. They proposed a similar number the last time the legislature met, in 2015. But like two years ago, none of these measures are expected to pass. And that’s largely because of a divide within the Republican Party—with the pro-business Republicans on one side and the religious conservatives on the other.

The Texas business community has been outspoken in its opposition, both to a proposed Religious Freedom Restoration Act last session and the various pieces of religious exemption legislation on the docket in the current session. They are also actively fighting against a transgender bathroom bill similar to the law signed in North Carolina. “There are widely reported economic losses in North Carolina” as a result of the state's bathroom law, notes Chris Wallace, president of the Texas Association of Business. “We do not want to do anything to our brand, which is ‘wide open for business.’” In fact, the association has launched a campaign under that name, Keep Texas Open for Business, that has been fighting against these religious freedom proposals. And they have any important ally: House Speaker Joe Straus, a moderate, business-friendly Republican from San Antonio. While the state Senate passed the transgender bathroom bill (SB 6) on Tuesday night, Wallace says he doesn’t expect it to go anywhere in the House.

“You want to protect your members from taking hard votes, and for a lot of people these are hard votes because there isn’t consensus on it,” explains Henson. Either way a Republican votes on one of these bills, it’s going to alienate an important constituency. “It’s got primary challenge written all over it,” Henson says.

The White House encountered that same lack of consensus at the national level when it was considering issuing an executive order on religious freedom along the lines of the First Amendment Defense Act, a draft of which leaked to the press in early February. LGBT advocacy groups mobilized a swift pushback, which included enlisting allies in the business community. Trump then surprised observers by reversing course, issuing an early morning statement declaring he intended to protect LGBT rights. The issue appears to be shelved, for now. But advocates on both sides do not expect it to be the end of the story, given how important it is for religious conservatives.

At the same time, Trump clearly seems to be sensitive to the potential for a backlash on this issue. Jenny Pizer, law and policy director at LGBT advocacy group Lambda Legal, says she doesn’t know what internal calculations are now being made at the White House, but given the conflicting pressures, “we might see something from the White House that is more similar to these targeted state bills.”