To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: August 4, 2016
Re: Weaponizing Religious Liberty: The 2016 State and Federal Record

Over the last several years, the increasing recognition of LGBT marriage rights, culminating in the Supreme Court’s landmark Obergefell ruling a year ago, has accelerated a concerted effort by religious right advocates to “weaponize” religious liberty – to transform it from a shield that protects individuals’ right to free exercise of religion into a sword to attack LGBT and other rights. The vast majority of such efforts failed in 2015, but Obergefell spurred far-right efforts in the states and spread them to Congress as well. With most state legislatures and Congress now in recess for the summer and effectively until after the November election, this is a good time to ask: what actually happened in  federal and state legislatures in 2016, and what does the future hold?

2016 saw a definite shift in tactics on “religious liberty” efforts, as the Religious Right and its allies pushed more targeted and far-reaching efforts to undermine LGBT rights. And far-right advocates scored some successes, with bills signed into law in three states and a Congressional hearing held before the powerful House Oversight Committee. But opposition by state legislators and governors, including Republicans, has prevented most state proposals from being enacted. And the most high-profile “religious liberty” bill that was passed – Mississippi’s – has been struck down by a federal court on constitutional grounds. Although action is unlikely this year on the federal bill that  received a House hearing in July, the future of that bill, as well as this issue throughout the country, will depend in large measure on the results of this fall’s elections and decisions yet to come on the Mississippi case in the higher courts.

A. The Record in the States in 2016

Although more than 100 anti-LGBT bills were introduced in the states in 2015, that number grew to close to 200 in the first several months of 2016, according to a recent analysis by The Fenway Institute. Many were promoted under the banner of religious liberty, with Religious Right advocates claiming that the combination of legal marriage equality and legal prohibitions against anti-gay discrimination are a dire threat to the freedom of those who hold “traditional” views on sexuality and marriage.

Last year, the focus of these efforts was to pass new state-level versions of the federal Religious Freedom Restoration Act (“RFRA”), with limited success. State RFRAs generally mimic the federal law, which sets up a balancing test: if a law puts a substantial burden on an individual’s exercise of religion, the individual can be exempted from the law unless the state proves that it is pursuing a compelling government interest in the least restrictive way. In the 2014 Hobby Lobby decision, the Supreme Court’s 5-4 conservative majority expanded RFRA’s coverage to for-profit companies and significantly lowered the bar for what counts as a substantial burden on the exercise of religion. That helps explain why social conservatives saw new state RFRAs as a way to give business owners and others a legal means for resisting nondiscrimination laws that would require them to, for example, provide wedding-related services to same-sex couples.

Mobilization against Indiana’s new RFRA last spring, led by members of the business community, pushed the legislature and governor to approve an amendment stating that the law could not be invoked to defend anti-gay discrimination, a move that religious conservatives denounced as a betrayal. The backlash-to-the-backlash in Indiana stalled momentum for other state RFRAs, and was seen as a significant setback to the use of RFRAs by Religious Right and other advocates.

Since then, the strategy has shifted in at least two ways. One is a more direct legislative approach to “protecting” anti-LGBT discrimination that is grounded in religious belief. Rather than relying on state RFRAs and their balancing of government interests, religious claims, and potential third-party harms, conservatives have been promoting variations on what they call the Government Nondiscrimination Act (GNDA), which creates specific legal exemptions for some forms of anti-LGBT and possibly other discrimination that are grounded in religious or moral beliefs about marriage, sexuality, and gender. GNDA supporters try to claim the moral high ground by portraying its purpose as protecting religious conservatives from government “discrimination” – in other words, from enforcement of laws against discrimination on the basis of sexual orientation or gender identity. The Family Research Council has promoted model GNDA legislation that can be tailored to individual states, while also calling for passage of a federal version, called the First Amendment Defense Act.
The shift in strategy in the states is demonstrated by the bills actually introduced in state legislatures this year. RFRA bills were introduced or carried over in only 11 states in 2016, and none passed. Bills granting blanket “protection” for religious objectors were introduced in 19 states, and 4 passed – in Mississippi, Tennessee, Georgia, and Virginia.  Interestingly, the bills were vetoed by governors in two states – a Democratic governor in Virginia and a Republican governor in Georgia.

Mississippi’s HB 1523, signed into law by Gov. Phil Bryant in April, is a good example of this approach. The law spells out a specific set of religious beliefs to which it applies, stating that government can take no action whatsoever against any individual or business who acts based on the belief that:

• (a) Marriage is or should be recognized as the union of one man and one woman;
• (b) Sexual relations are properly reserved to such a marriage; and
• (c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.

For example, the law would authorize foster parents to require an adopted gay teen to undergo discredited and psychologically damaging “conversion” therapy with no interference by a child welfare agency, allow a court clerk to refuse to issue a marriage license to an LGBT couple, and permit a hospital to decline to provide even emergency shelter or care to an LGBT couple or an unwed mother. The law was largely drafted by another Religious Right group, Alliance Defending Freedom, which also helped write the governor’s signing speech.
Literally on the eve of the law taking effect, a federal judge ruled that HB 1523 was unconstitutional and prevented its implementation. In an extensive 60-page opinion, Judge Carlton Reeves ruled that the law not only violated equal protection of the law with respect to LGBT people but also held that the law violated the religious freedom guarantee of the First Amendment by giving preferential treatment to specified religious beliefs. Government non-interference is guaranteed by the law, he explained, only with respect to religious beliefs against LGBT marriage, not for those who believe such marriage is permissible and act accordingly. As Reeves concluded, the state improperly decided to “put its thumb on the scales to favor some religious beliefs over others.” Although sure to be appealed, the decision has been recognized as a “landmark ruling” that displays “analytical incisiveness.”

Lawsuits are also pending against the law passed in Tennessee, which limits its “protection” to the religious beliefs of counselors and therapists, and against the sweeping anti-LGBT law in North Carolina, which was based not on religious liberty claims but on animus against transgender individuals. In both these states as well as Mississippi, many business leaders and others have come out strongly against the laws.

B. Congressional Action in 2016

Around the same time that activity in the states began last year on GNDA-type legislation, an equivalent bill was introduced in Congress: the Marriage and Religious Freedom Act, later renamed the First Amendment Defense Act (FADA). Like its state counterparts, FADA would prohibit any negative federal action against any corporation or individual who takes action based on the very conservative beliefs on sex and marriage outlined above in the Mississippi bill. The bill now has 38 cosponsors in the Senate and 172 in the House, all but one of whom are Republicans.

Opponents have explained that the effect of the bill at the federal level would be sweeping. Government employees could refuse to issue checks for survivors or Social Security benefits with respect to LGBT couples. Hospitals could continue to receive federal funds even if they refuse to allow visitation involving LGBT married couples. The current executive order against anti-LGBT discrimination with respect to federal contractors would effectively be repealed for any contractor that objects on religious grounds. And as originally introduced, it was subject to the same constitutional defects that Judge Reeves found with respect to the Mississippi law.

No action occurred in Congress last year on FADA. But this year, literally one month to the day after the tragic Orlando massacre, the House Oversight Committee held a public hearing on FADA. Current and former members of Congress (including openly gay former Representative Barney Frank), law professors, advocates, and others clashed inside and outside the hearing room, echoing the arguments in the states.

Perhaps the most important developments in 2016 concerning FADA, however, occurred just before and after the hearing. The week before the hearing, apparently in an effort to respond to Judge Reeves’ holding that  the similar Mississippi law favored only one religious point of view, FADA was changed so that its “protection” applies both to religious views that marriage should only be between two individuals of the opposite sex and to religious beliefs that marriage should also be open to two individuals of the same sex. The day after the House hearing,   the influential Family Research Council withdrew its support from the bill  because of the amendment to FADA.

Particularly in light of this development, legislative votes on FADA in Congress are unlikely this year. The Republican Party, however, specifically endorsed the original version of FADA in its platform, and Donald Trump has made clear that he would sign it if he were president. The November elections will be very important for future developments at the federal level.

C. The Future

Both at the state and the federal level, what happens in the future on “weaponizing” religious liberty will depend in large measure on the November elections and the outcome of court challenges to the laws in Mississippi and elsewhere. But no matter what happens in these forums, it is clear that the Religious Right has not and will not give up its fight on this issue.

Heritage Foundation’s Ryan Anderson had a book ready to push out after the marriage equality ruling. In it he laid out a short-term and long-term game plan for the movement, which many leaders appear to be following. The first task, he wrote, is for conservatives to denounce the marriage equality ruling as illegitimate. Mission accomplished on that score. Next, win legal exemptions that will allow individuals, institutions, and businesses to act according to their beliefs. That is now under way, but it is also not the end of the road. Anderson envisions a campaign that could extend for decades to “restore” the cultural and legal understanding that marriage must be limited to a man and a woman. He sees the anti-abortion movement’s long-term campaign against Roe v. Wade — using state and federal restrictions and court rulings to keep chipping away at women’s access to abortion — to be the model for a generational struggle on marriage.

But some conservatives hope they won’t have to wait that long. They hope that the next president will, as Donald Trump has said he would, appoint conservative Supreme Court justices who will overturn marriage equality and uphold laws like FADA.