The two separate worlds of gay rights

For the past year, as Republican lawmakers continue to pass bills aimed at protecting the religious freedom of those opposed to same-sex marriage, a new social vision of separation has begun to evolve.

It is not a return to the old “separate but equal” idea. Instead, it is a vision of a public sphere in which those with “sincerely held religious beliefs,” including businesses that provide public services, can separate themselves, or opt out of certain kinds of social obligations surrounding same-sex marriage.

Some have even called it an effort to create a “safe space” for religious conservatives to codify traditional views of marriage for themselves – as well as to decline to participate in the ceremonies and celebrations of same-sex unions.

Although US law has long allowed religious communities to carve out their own separate communities and ways of life, “I think there is a new embrace of traditional separationist concerns by people who used to argue for more integration,” says Mark Goldfeder, senior fellow at the Center for the Study of Law and Religion at Emory University in Atlanta.

“If you have people that grew up in a particular era where their religious culture was the dominant culture, and American law was in line with the religious values that they hold, and suddenly that changed, that’s a tremendous shift,” Mr. Goldfeder continues. “It’s a shift that what’s been called ‘the religious right’ has never experienced.”

But if their cultural dominance has waned, religious conservatives still remain a potent political force in state governments across the country. And the idea to carve out separate safe spaces has been evolving rapidly over the past 12 months, even as state after state finds itself within maelstroms of political controversy.

During the past two years, when states like Indiana, Arkansas, and Arizona have tried to expand their general religious freedom protections, scores of American business leaders joined civil rights activists and others to cry foul, saying such efforts could legalize discrimination against same-sex couples.

In each case, state lawmakers backed down, even though their laws did not specifically address religious views of marriage. Threatened with the loss of commerce, the governor of Arizona vetoed the state’s expanded protections, Indiana “fixed” its controversial law, and Arkansas revised its religious freedom bill.

Yet this year many Southern states have pressed separationist concerns even further. Republican lawmakers in Missouri, North Carolina, and Mississippi have now tackled the issue of same sex marriage head on, carving out specific protections for a wide range of businesses and professions where those with “sincerely held religious beliefs” might encounter same sex couples or transgender people. Tennessee is considering its own version of a so-called "bathroom bill," which would require transgender people to use the bathroom of the sex on their birth certificate.

On Tuesday, Mississippi Gov. Phil Bryant (R) signed into law a sweeping bill titled the “Protecting Freedom of Conscience from Government Discrimination Act.” It protects religious beliefs but goes even further, allowing people to refuse to serve lesbian, gay, bisexual, and transgender people on moral grounds.

Those holding such views are able to decline wedding-related services – such as baking cakes or providing flowers or photos and video – to same sex couples, even if they are otherwise available to everyone else as a “public accommodation.” The law also allows doctors and therapists to decline to treat transgender people, and psychologists and fertility specialists can decline, for moral reasons, to treat those with lifestyles inconsistent with their beliefs.  

"It gives protection to those in the state who cannot in a good conscience provide services for a same-sex marriage,” said state Sen. Jennifer Branning. "I don’t think this bill is discriminatory. It takes no rights away."

Yet Mississippi, like every other Southern state, does not provide civil rights protections for its LGBT residents – nor does federal law.

“This law goes further than any other bill in the country right now,” Jody Owens, managing attorney of the Southern Poverty Law Center in Mississippi told the Los Angeles Times. It’s broad enough that it encompasses every function of one’s life,” he said, adding that the bill could give a landlord the right to refuse to rent, on moral grounds, to any two people living together before marriage.

In March, Republican legislators in North Carolina went so far as to overturn local ordinances that protected LGBT people, while at the same time overturning a Charlotte law that allowed transgender people to use facilities that matched their gender identity.

But the law also included anti-discrimination provisions in matters of employment and public accommodations. It listed race, religion, age, gender, and others under protected classes of citizens – but not LGBT people.

“The idea that a business that opens itself to the public has to serve everybody in a nondiscriminatory way is a well-founded feature of civil rights law,” says Nelson Tebbe, a professor at Brooklyn Law School in New York who focuses on religious freedom issues. “It stands not at the periphery of civil rights law, but at the core of civil rights law.”

“But the North Carolina law not only declines to protect LGBT people in its statewide civil rights law, it prohibits localities from protecting LGBT people in their local civil rights laws, and that’s probably unconstitutional, a violation of equal protection,” Professor Tebbe continues.

On Wednesday, a number of big corporations, including PepsiCo, General Electric, Dow Chemical, and others urged Mississippi to repeal its new law. "The business community, by and large, has consistently communicated to lawmakers at every level that such laws are bad for our employees and bad for business," company executives said in a letter to lawmakers.

Dozens of business leaders urged North Carolina to reconsider its law, and on Tuesday PayPal announced that it was canceling a new $3.6 million operation center in Charlotte, which would have created 400 jobs.

On March 28, Georgia Gov. Nathan Deal vetoed a "religious liberty" bill passed by his state's legislature, saying, "I do not think we have to discriminate against anyone to protect the faith-based community in Georgia, of which I and my family have been a part for all of our lives."

Governors of other states, including New York, Vermont, Washington, and Oregon, have banned state employees from making nonessential state trips to Mississippi and North Carolina, calling the laws a violation of civil rights.

“Truth be told, what is happening is that people are getting further and further entrenched in their positions and digging lines in the sand in a way that isn’t helpful to anyone,” says Goldfeder. “And it's pretty terrible for our national culture.

“People on both sides need to take each other seriously, and respectfully, and have a conversation at a table without these rushes to do bills and then dealing with the backlash,” he continues.