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The Backlash

The Backlash

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How the religious right is conspiring to put discrimination back into law.

In 1983, in Oregon, two men, Alfred Smith and Galen Black, were fired from their jobs as substance abuse counselors at a drug rehab clinic. A supervisor got wind that the men had been using peyote, a powerful psychoactive drug made from a small cactus said to trigger hallucinations and feelings of deep introspection.

Disgruntled and jobless, the drug counselors applied for unemployment benefits, but the state rejected their claim, citing work-related misconduct. Taking peyote is illegal in Oregon, as it is in most states. But the men were both members of the Native American Church, where peyote is used in religious ceremony, and the Oregon Court of Appeals reversed the decision, stating that to deny the men unemployment benefits based on the religious use of a controlled substance violated the men's First Amendment right to free expression of religion.

Oregon appealed, and the case went to the U.S. Supreme Court twice. The final 5-4 decision, in 1990, ruled in favor of the state and against religion. Writing for the majority in what is now known as the Smith decision, Justice Antonin Scalia, still one of the court's staunchest conservatives, wrote:

The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind--ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, aand laws providing for equality of opportunity for the races.

Simply put, the court said, if people are allowed to pull the God card when they break a law, absolute anarchy awaits everyone. "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself," the decision read.

It's difficult to imagine Scalia would have felt the same had the case involved something like underage Catholics drinking wine at communion rather than Native Americans using peyote. What's more difficult to imagine, in today's political context, is the aftermath. The Smith decision was widely decried as a devastating blow to First Amendment rights and jolted all sides of the political spectrum into action. As a response, in 1993, New York Democratic congressman Chuck Schumer introduced the Religious Freedom Restoration Act (RFRA). It passed unanimously in the House and picked up only three dissenting votes in the Senate.

Christian media moguls Jerry Falwell and Pat Robertson joined ACLU chief Nadine Strossen in support of RFRA as President Clinton signed it into law, guaranteeing, "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," as the law states, mandating strict scrutiny when determining whether religious freedom has been violated by the state and acknowledging that even a religiously neutral law can significantly burden a religion.

Now, the legislation born from that bag of peyote has set the legal stage for what's being called the "partial-birth abortion" era for LGBT rights as lawsuits and conservative state governments, under the guise of protecting the religious freedom of Christians, attempt to chip away at the extraordinary surge forward of legal protections for queer people.

In 2015, Texas, Oklahoma, Arkansas, Indiana, West Virginia, Georgia, and Wyoming have moved bills through their state legislatures that would either ban anti-discrimination laws from protecting LGBT people or legalize the so called religious-freedom exemption for private businesses to deny service to LGBT people (also known as "turn away the gays" laws).

Last year Tennessee, Arizona, Mississippi, Maine, and Idaho all attempted to pass legislation aimed at removing protections for LGBT people.

In Kansas, this February, Governor Sam Brownback rescinded existing protections for LGBT state employees, saying they created additional "protected classes" that were unnecessary.

In North Carolina, after that state's marriage discrimination law was invalidated last October, ten magistrates resigned rather than agree to issue marriage licenses to same-sex couples. In the spring, lawmakers there began to draft a religious freedom restoration act for the state. South Dakota and Kentucky pushed bills to target the rights of transgender people and bathroom use.

Then, on March 26, as many of these bills hobbled through state governments or stalled, Indiana governor Mike Pence signed that state's RFRA bill into law. The outcry was swift and paralyzing, as protesters took to the streets in Indianapolis and elsewhere and organizations like Walmart, NASCAR, and the NCAA expressed distaste for the new law.

At the private signing ceremony -- where roughly 70 guests, including religious leaders and anti-abortion activists, convened to ring in the new law -- three of Indiana's harshest anti-gay conservative lobbyists loomed over Pence as his pen dashed across the page: Micah Clark of the American Family Association of Indiana, Curt Smith of the Indiana Family Institute, and Eric Miller of Advance America. The three have quite a track record: Clark, in reference to the Boy Scouts accepting gay youth, once said, quoting scripture, that it's "better to have a millstone tied around your neck and thrown in the sea" than to "cause a child to stumble into sin." Smith has been known to equate homosexuality with bestiality, also quoting scripture, and Miller, besides comparing LGBTs to pedophiles, once distributed fliers claiming pastors could be jailed for preaching against homosexuality.

The law was widely seen as a consolation prize to conservatives for Pence's unsuccessful attempt last year to enshrine a same-sex-marriage ban in Indiana's constitution. Many of the 2016 Republican presidential candidate front-runners--Jeb Bush, Ted Cruz, Scott Walker, Marco Rubio, and Rick Perry -- immediately voiced support for Pence and the law. Appearing on ABC News in an interview with George Stephanopoulos, Pence maintained rhetoric that the law was about protecting religious expression and refused to address its anti-gay subtext.

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Stephanopoulos: Yes or no? If a florist in Indiana refuses to serve a gay couple at their wedding, is that legal now in Indiana?

Pence: George, this is where this debate has gone, with misinformation, and frankly--

Stephanopoulos: It's just a question, sir. Yes or no?

Pence: There's been shameless rhetoric about my state and this law and its intention all over the Internet. People are trying to make it about one particular issue, and now you're doing that as well....

Stephanopoulos: Sir, I'm just bringing up a message from one of your supporters. One of your supporters said, talking about your bill right there, it would protect a Christian florist against any kind of punishment. Is that true or not?

Pence: George, look, the issue here is, is tolerance a two-way street or not?


In the bumbling, 11-minute interview that, as a stupendous example of evasion, quickly went viral, Pence directly answered only one question:

Stephanopoulos: ...One fix people have talked about is simply adding sexual orientation as a protected class under the state's civil rights laws. Will you push for that?

Pence: I will not push for that.


Nationwide, Barronelle Stutzman and a handful of other florists, bakers, innkeepers, and photographers are the human face of this political do-si-do. Stutzman owns a flower shop in Richland, Wash., and recently refused to do arrangements for the wedding of a gay, longtime customer, Robert Ingersoll.

"The way I told Rob I had to refer him [to another shop] was by taking his hands and saying 'I'm sorry I can't do your wedding because of my relationship with Jesus Christ,' " Stutzman wrote to The Advocate in an email. "Rob said he understood, and that his own mom felt the same way, but he hoped she would walk him down the aisle. We talked about how he got engaged and why they decided to get married after all these years. He asked me for the names of other flower shops. I gave him the names of three floral artists that I knew would do a good job, because I knew he would want something very special. We hugged and he left," she wrote.

Then the state's attorney general came knocking on Stutzman's door, claiming she had violated the state's equal protection law for LGBT people, and Ingersoll reappeared with an army of lawyers from the ACLU.

"His attorneys now claim I hurt his feelings in that exchange, I stand to lose everything -- my house, my shop, my life savings, and my freedom. I think it's pretty clear which way the scales are tipped right now," Stutzman wrote (italics hers).

Stutzman is being represented pro bono by Arizona-based nonprofit the Alliance Defending Freedom. ADF successfully represented Hobby Lobby in the landmark 2014 Supreme Court case that struck down the contraception mandate adopted in the Affordable Care Act. Hobby Lobby cited RFRA in its defense that, in the company's providing contraceptives to female employees in its health insurance policies, its religious freedom was being intruded upon by the government. The ruling was the first time the courts recognized a for-profit business's right to religious belief.

"We're defending people's right to freely live according to their faith," said Greg Scott, an ADF spokesperson, who said his organization is litigating around 200 cases right now and, after a recent hiring spree, employs about 75 full-time attorneys with an extended network of 2,500 affiliated attorneys. ADF also represents nearly all of the butchers, bakers, and candlestick makers who are in the national spotlight for refusing to serve LGBT people, including Colorado baker Jack Phillips and Oregon baker Melissa Klein.

"Our government was set up to be a great protector of liberty. The First Amendment was supposed to be a shield protecting people being censored or coerced into saying something or doing something against their will. Now the government has become a threat to those very things it was created to protect," Scott told me regarding ADF's mission.

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Above: Sister Caroline attends a rally to praise the Supreme Court's decision in the Hobby Lobby case in Chicago on June 30, 2014.

However, ADF's president, current CEO, and chief counsel, Alan Sears, a former prosecutor in the Reagan administration's Justice Department, hasn't always been so keen on battling censorship and state-sponsored coercion. While serving as executive director of the Attorney General's Commission on Pornography, Sears sent a personal letter, in 1986, to thousands of retailers in an attempt to bully them to stop selling Playboy and Penthouse magazines, lest they be publicly named as pornographers. After some 17,000 retailers stopped selling the magazines, Christie Hefner, daughter of Hugh Hefner, together with Penthouse International, sued the Justice Department. Sears resigned and moved to the Department of the Interior rather than comply with a judge's order that he retract the letter.

"This is not only about me. This is about every American's freedom," Barronelle Stutzman wrote to me. "When the government can come in and tell you what to say and how to say it and force you to create art to express things you don't believe, that should frighten everyone no matter what you believe about marriage or anything else."

If you find it difficult to sympathize with either side in this argument, you're not alone. The self-pity of Christ's Little Wedding Planners seems, to some, as harebrained as the blushing grooms-to-be who foist the ACLU on granny and her bucket of dyed carnations. A voiceless many in the LGBT community still view marriage as a conservative, middle-class preoccupation and the death notice of a movement that set out to be something far more beautiful and unholy.

Cary Franklin is an assistant law professor at the University of Texas at Austin who specializes in civil rights law and sexuality. In Texas, as in many other states, it's always been legal for a business owner to discriminate against LGBT people because Texas doesn't include sexual orientation in its anti-discrimination laws. Texas's major cities have adopted their own protections for gays and lesbians, covering some 7 million Texans, but a law on the table now could erase those. And this year prominent Texas Republicans celebrated the 10-year anniversary of the state's constitutional amendment banning gay marriage with a cake-cutting ceremony at the capitol.

"There's always been a lot of discrimination against gays and lesbians in places where these cases are popping up," Franklin said. "Now people's eyes are trained on them and the people who are doing the discriminating feel attacked and are more vociferously asserting their right to discriminate."

A sociologist at Indiana University named Brian Powell studied whether the things people actually say about homosexuality match the legal arguments used to justify same-sex-marriage bans.

In Powell's study, hundreds of respondents from across the country overwhelmingly mentioned God and used terms like "beastly" and "sinners" to express their private views on homosexuality. The researcher concluded the true reason for anti-LGBT motions is moral disapproval of same-sex relationships. But moral disapproval makes for a flimsy legal case and would compel lawmakers to pursue arguments with a more secular bent, like the benefits of procreation, the superiority of dual-sex child-rearing, and, now, the encroachment on religious freedom.

"I think the religious-exemption argument has developed as previous arguments against gays and lesbians have become unpalatable," Franklin said. "People used to be able to come to court and say, 'First of all, this is illegal, the behavior they're engaging in. I don't have to treat criminals with respect.' Then when [Lawrence v. Texas] said you can no longer criminalize this behavior, people did come forth and say, 'This is just wrong, this is morally unacceptable, this is gross. I don't want my children exposed to this,' " she said. "Courts across the country have uniformly said those arguments don't fly anymore. That's why we're here at the religion argument. All the other arguments are no longer acceptable."

In Oklahoma, Republican state senator Joseph Silk is sponsoring a "turn away the gays" bill. "They don't have a right to be served in every single store," the 28-year-old father of five told a New York Times reporter in March.

I was on my way home from dinner one night in Manhattan when I got an email from Silk. I had just stopped in for a beer at the Stonewall Inn, site of the rebellion in 1969 that began the modern gay rights movement.

Silk told me in no uncertain terms that he believes homosexuality is a "behavior" that people "choose to act on and accept." He said gay people have threatened to murder him and his children after he sponsored the bill in Oklahoma.

It was the tail end of winter and the night was young and the crowd at Stonewall messy. Drunks swayed outside the door puffing on cigarettes, and a thin mongoose of a woman yelled at the bartender for cutting her off.

"Essentially these cases are centered on the LGBT community not wanting people to be able to live out their religious beliefs in their private business if those beliefs disapprove of the behavior they have chosen," Silk wrote. "Next in line is the church, soon the LGBT community will not want the churches to be able to teach that the Bible views homosexuality is a sin. The LGBT activists have shown that their right [to] live that way is not enough. They want their behavior condoned by law even if it violates other people's rights."

Alabama -- impressively undeterred by its blood-soaked reputation in the arena of civil rights -- is, so far, throwing the most egregious hissy fit against LGBT legal protections by threatening, among other things, to stop all marriages in the state if it has to also allow gays and lesbians to wed.

Comparisons to the Jim Crow South are inevitable. Before Rosa Parks, the March on Washington, and the iconic images from the 1960s, the black civil rights movement in the 1940s and '50s looked very much like today's LGBT rights movement, with states and major cities taking the initiative, ahead of the federal government, to adopt their own ordinances prohibiting discrimination.

Kevin Mumford is a history professor at the University of Illinois specializing in the civil rights and LGBT rights movements. His latest book, about gay activism in the black community, will be published next year.

"The South is the story of official, daily enforcement of a caste system where you see day-to-day interrogations, beatings, murders. You don't see that in response, for the most part, to the gay rights movement," Mumford said. "It's focused on destigmatizing homosexuality."

The role of the church is another difference. "Politicians were the staunchest proponents of segregation, not the clergy," Mumford said. "Many gays and lesbians, particularly African Americans, are pushing for inclusion in the church. That's not the case for the African-American civil rights movement. Their status as worshipers, their recognition of faith, was very secure."

In March, as Silk's bill worked its way through the legislature in Oklahoma, one Democratic state representative, Emily Virgin, came up with a clever defense. She attached an amendment to the bill that mandates that business owners must post notice of such refusal of service clearly visible to the public in all places of business, including websites.

That punctured the smokescreen. The reminder, for conservatives, was a bit too haunting of another time when signs hung outside storefronts, only then they didn't read "Straights Only."

It worked. The bill died, for the time being.

In Indiana, one week after Pence signed the RFRA law, panicking state legislators needed to declare Indiana a wonderful place to do business. The state does not endorse discrimination, they cried. On the eve of the NCAA's Final Four Championship in Indianapolis, a last-minute change to the law soared through government. It added language acknowledging that 11 of Indiana's 566 cities and towns protect LGBT people from unfair treatment. And so, in those 11 communities in Indiana, you probably can't discriminate.

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