For anyone even moderately steeped in the LGBT rights fight, the wave of so-called “religious freedom” legislation and subsequent backlash has started to resemble a bad song whose lyrics you can’t quite forget.
In 2014, it was Arizona’s SB 1062; in 2015, it was Indiana’s SB 101; this year, North Carolina’s HB2 — while not expressly geared toward protecting “religious freedom” — has emerged as the most prominent piece of legislation seeking to unwind the advancements of the LGBT equality movement.
But HB2 is far from the only measure of its kind. And it likely won’t be the last.
“We’re going to continue to see this play out throughout this election year, but I don’t think this is truly an election year issue,” said Matt McTighe, executive director of the pro-LGBT group, Freedom for All Americans. “That’s why we have to reshape this fight as a fight for non-discrimination protections… Otherwise we’ll be putting out brush fires and playing whack-a-mole for the indefinite future.”
As the LGBT community has taken historic strides toward equality in recent years — culminating, most notably, with the Supreme Court’s decision last June to legalize nationwide same-sex marriage — their victories have coincided with the rise of measures offering legal cover to religious detractors, many of whom view open LGBT expression as a lifestyle choice. Often, these “religious freedom” proposals are drafted with an eye toward creating carve-outs within existing marriage equality or nondiscrimination laws, allowing individuals, businesses, and even government employees to refuse service to someone by claiming a “sincerely held religious belief.”
What’s new in ‘religious liberty’ this year?
A newer crop of legislation — as seen in North Carolina — focuses more narrowly on keeping transgender people out of the bathroom that corresponds with their gender identities. But according to Rose Saxe, staff attorney at the American Civil Liberties Union, it’s easy to draw a straight line from “religious freedom” to these so-called “bathroom bills.”
“We are certainly seeing a number of explicitly religious bills this year, but we’re also seeing a broader range of anti-equality measures driven by many of the same faith organizations,” said Saxe. “And in some ways, anti-trans arguments are also being recast as faith-based ones, protecting people whose faith denies the existence of transgender people. These aren’t separate; they’re all still connected … They’re all coming from the same place of stopping equality.”
Which bills have failed so far in 2016?
South Dakota’s was the first state legislature to clear an anti-LGBT bill this year, passing HB 1008 in February. The measure would have made the Mount Rushmore State the first in the nation to restrict access to public school restrooms and locker rooms based solely on a person’s “biological sex.” But facing widespread opposition from individuals and major employers in the state — such as Sanford Health, Citibank and First Premier Bank —Republican Gov. Dennis Daugaard decided to veto the bill in March.
The backlash was even worse in Georgia, where lawmakers last month approved HB 757, a bill allowing businesses to deny services to gay and lesbian couples by citing religious principles. Disney and the NFL were among the major corporations threatening to boycott the Peach State over the legislation. But Republican Gov. Nathan Deal ended up citing “the character of our state and the character of our people” when he vetoed the bill on March 28.
Which ‘religious liberty’ bills have passed?
Despite being under intense scrutiny, the “religious freedom” push showed no signs of slowing down last week. In Mississippi, the ink of Republican Gov. Phil Bryant’s signature was barely dry before the outcry against his state’s controversial “religious freedom” law began. By nightfall Tuesday, New York Gov. Andrew Cuomo, a Democrat, had issued an executive order banning all non-essential state travel to Mississippi. Shortly after, Minnesota Gov. Mark Dayton, also a Democrat, did the same.
Meanwhile, the uproar over North Carolina’s HB2 — a measure negating all local nondiscrimination ordinances and banning transgender people from using public restrooms in accordance with their gender identities— continued to grow. On Friday, Bruce Springsteen canceled an upcoming concert in Greensboro to “fight against prejudice and bigotry,” as he said in a statement on his website. More than 130 CEOs and business leaders have signed onto an open letter urging Republican Gov. Pat McCrory to repeal the legislation. Charles Barkley, one of the NBA’s most legendary icons, is now calling on the league to relocate 2017’s All-Star Game, which is scheduled to take place in the state. More than 42,000 people have signed a petition urging companies like Nike and PepsiCo to refuse sponsorship of the premier basketball exhibition. The NBA has no comment yet on the 2017 All-Star Game, the NBA’s executive vice president of communications, Michael Bass, told NBC News on Sunday.
And in the most tangible economic consequence yet, PayPal announced plans last week to cancel a scheduled expansion in Charlotte that would have brought 400 high-skilled jobs to the city.
At the same time, “religious freedom” supporters across the country urged Bryant, McCrory and likeminded lawmakers to stand strong.
“The greedy, self-serving corporations and professional sports organizations who are threatening Georgia, North Carolina and assuredly will Mississippi as well, do not have the right to dictate the values of the citizens in the communities or states in which they do business,” wrote Rev. Dave Welch, president of the Texas Pastor Council and one of the most outspoken opponents of Houston’s failed equal rights ordinance, in a letter to Bryant. “As they continue to attempt to bully ‘We the People,’ it is more important than ever that we have leaders like you who will do what is right versus what is expedient.”
What bearing does this latest rash of ‘religious liberty’ bills have on the 2016 election?
In the beginning of the presidential election cycle, it looked like “religious freedom” would play a major role, perhaps replacing overt opposition to same-sex marriage as a crucial litmus test for anyone seeking the Republican nomination. When Kentucky clerk Kim Davis was released from jail after being found in contempt of court last year for refusing to issue marriage licenses to same-sex couples on religious grounds, both Texas Sen. Ted Cruz and former Arkansas Gov. Mike Huckabee were on hand to celebrate.
Cruz still talks about religious liberty on the campaign trail. But not as much as he did last year, when he held two public rallies specifically devoted the issue. On the debate stage and in nationally broadcasted interviews, religious liberty has barely come up.
According to Welch, who has endorsed Cruz, this relative silence among the presidential candidates is understandable.
“In terms of presidential action and campaigning right now, I’m not real surprised it’s not front and center,” Welch told MSNBC. “[Religious freedom] is a big issue increasingly at the local and state level where many battles are being waged … But on the national plane right now, we have some huge, major macro-issues of national security and economic stability.”
The Human Rights Campaign has tracked more than 200 anti-LGBT bills introduced this year in 32 states across the country — “a big uptick” from previous years, said the ACLU’s Saxe. Very few will go on to become law. But here’s a look at the states LGBT advocates are watching closely.
Tennessee
Tennessee advanced two anti-LGBT bills last week — one that would allow counselors and therapists to deny service to a patient if doing so were to conflict with the counselor’s “sincerely held religious beliefs,” and another that would require public school students to use the restroom that corresponds with the sex on their original birth certificates.
The Republican-controlled House of Representatives on Wednesday passed HB 1840, the “religious freedom” measure, clearing the way for the bill to head back to the state Senate for final approval. Later that day, the House Education Administration & Planning committee passed HB 2414, the “bathroom bill,” advancing it to the Senate Finance, Ways, and Means Committee for a vote.
Missouri
Missouri Senate Joint Resolution 39 (SJR 39) would amend the Show-Me State’s constitution to protect “certain religious organizations and individuals from being penalized by the state because of their sincere religious beliefs or practices concerning marriage between two persons.” In March, the measure cleared the GOP-controlled Missouri Senate after Republicans in the chamber used a procedure to cut off debate — an action Democrats said broke Senate rules.
If the measure passes the Missouri House of Representatives, also controlled by Republicans, it will be added to the November ballot for voters to decide its fate.
South Carolina
Republican state Sen. Lee Bright last week introduced SB 1203, a measure that would require people to use public restrooms based solely on the person’s “biological sex.” However, with Republican Gov. Nikki Haley’s recent statement that the bill was not “necessary,” the legislation appears unlikely to become law.
Emma Margolin
Emma Margolin is a reporter at MSNBC.com.