The current backlash of religious liberty legislation won’t come as a surprise to anyone, but it looks like we will be in for a long courthouse ride on the current wave. The Advocate has an excellent article providing a good summation of Religious Freedom Restoration Acts, and their various permutations now piling up on courthouse steps. As noted, attempts at circumventing civil rights rulings aren’t new at all, but some groups are getting more savvy about language use, which can allow some discrimination to be passed, where the ones with blatant discriminatory language won’t.
Religious freedom is all the rage these days. To hear it told by conservative activists, the constitutional promise of each citizen’s free exercise of religion is under attack like no other time in U.S. history. Surely, such an urgent question is headed for the Supreme Court, right?
Maybe not so fast. Several out attorneys who have spent decades fighting for LGBT civil rights tell The Advocate that we may be settling in for another long, drawn-out battle that challenges discriminatory laws state by state, clause by clause.
Perhaps proving they’ve learned from Romer, though, anti-LGBT lawmakers these days are less explicit about which groups they’re targeting. The trend in RFRA legislation is to never include any mention of the words “gay, lesbian, bisexual, transgender,” or even “sexual orientation or gender identity.”
Some of the modern iterations of these religious freedom laws hew closely to the federal RFRA, which is comparatively narrow in scope, and therefore generally considered constitutional. But the new wave of bills claiming to protect religious freedom have a broader and, advocates say, more sinister motive.
“It’s not just about LGBT people,” Warbelow explain. “It’s about so much more. That’s an element of why these states are trying to pass [religious freedom laws], but it’s also very much about birth control. It’s very much about restrictions around abortion or even having to talk about abortion. It’s about creating a system in which the religious majority gets to live out their faith regardless of whom it hurts.”
The challenge, these attorneys agreed, is that litigation is designed to address one particular issue or constitutional question at a time. With laws that enable such widespread, multifaceted discrimination, each of those discriminatory provisions will have to be struck down individually, in every state where such a law exists. And even if this Herculean effort is successful, there’s nothing stopping determined anti-LGBT lawmakers from reintroducing slightly amended versions of bills that may have already been struck down in court.
“I actually think the American people are fundamentally with us, on understanding how the effort to use religion as a sword needs to be rejected in this [election] cycle,” says Wolfson. “It’s a multiple set of engagements we need to do, but the big lesson of the marriage work is: Get ahead of it. Have an affirmative strategy. Don’t just be reacting.”
Warbelow agrees and stresses that the problem isn’t with the concept of religious liberty.
“There’s still a real need for protections for religious minorities,” says Warbelow. “It’s just that the [federal RFRA] law has been misused by the courts.”
She points to the Do No Harm Act, a piece of legislation introduced by two Democrats last month in the U.S. House of Representatives that looks to revise the federal RFRA to clarify that it cannot be used to discriminate against members of any minority class, be they religious minorities, LGBT people, and/or women. The bill, Warbelow says, seeks to “restore RFRA to its original intent.”
“We need to reenvision what it means to protect religious liberties,” Warbelow says, “without creating a system in which it’s a free-for-all for discrimination.”