Religious conservatives know they are losing the marriage equality fight, but they have a plan so they can keep discriminating against gay couples and it involves our old friend “religious freedom.”
The Religious Right is still in a spin after judges looking at both the Utah and Oklahoma gay marriage bans ruled those voter enacted bans unconstitutional. Should these cases reach the Supreme Court of the United States, it appears there’s at least a fighting chance that the Supreme Court could strike down all bans on same-sex marriage. In short, the anti-gay crowd is starting to get the idea that when it comes to banning gay marriage they’ve lost the battle. Yet, by exploiting religious freedom and building on religious privilege, they may still have some victories on the horizon that could set back marriage equality progress dramatically by giving the religious license to discriminate.
How? Well, we’re seeing a number of so-called religious freedom bills being introduced in state legislatures across the United States. Recently, Maine saw the introduction of L.D. 1428, sponsored by Sen. David Burns, R-Whiting, a bill that would essentially stack the deck in favor of religious freedom over other civil rights by enshrining that the government must have a “compelling interest” in overriding the so-called religious freedoms of citizens.
Of particular interest is the following definition in the bill:
Exercise of religion. ”Exercise of religion” means the practice or observance of religion under the United States Constitution, Amendment I and the Constitution of Maine and includes acting or refusing to act in a manner substantially motivated by a sincerely held religious belief, whether or not the practice or observance is compulsory or a central part or central requirement of the person’s religious belief.
Those opposed to this change point out that the “compelling” interest is vague and would most likely preclude any kind of discrimination claim if, say, a couple were to be denied goods or services from a secular business.
To be clear, the bill is broader than same-sex marriage. For instance, testimony on the bill included a woman who, while working at a health clinic, had placed her job in jeopardy by refusing to give a patient the morning after pill. Yes, the bill’s supporters say, under this legislation the woman would have been spared having to give out the pill. Clearly, these religious exemptions are geared at more than just same-sex marriage, but it is marriage equality and the threat that religious groups may not have license to discriminate in public services in particular, that seems to be spawning more and more of these bills.
In essence, the ACLU argues, the bill would serve to nullify large parts of Maine’s Human Rights Act and allow broad religious-based discrimination. Similar legislation has now once again been proposed in Arizona and is advancing at a swift pace. Several other states have similar bills either filed or in the works.
This effort to forestall progress is going on at the federal level as well. We’ve seen a number of so-called religious freedom bills introduced into Congress over the past few years, in particular over the issue of same-sex marriages on military bases.
Now, Rep. Randy Weber (R-TX 14) has introduced a bill into Congress to shore up those efforts while they evolve at the state level. Essentially his bill, the State Marriage Defense Act or H.R. 3829, would bar the federal government from recognizing gay marriages from states where there is no state level gay marriage recognition.
The legislation would, for instance, be an answer to the federal government’s cheeky yet entirely correct decision to recognize the more than 1,000 same-sex marriages that were carried out in Utah prior to the Supreme Court of the United States issuing a stay and the state government saying it would not recognize those marriages.
“I drafted the ‘State Marriage Defense Act of 2014′ to help restore the 10th Amendment, affirm the authority of states to define and regulate marriage, [and] provide clarity to federal agencies seeking to determine who qualifies as a spouse for the purpose of federal law,” Weber is quoted as saying. “By requiring that the Federal Government defer to the laws of a person’s state of legal residence in determining marital status, we can protect states’ constitutionally established powers from the arbitrary overreach of unelected bureaucrats.”
To be clear, this bill probably isn’t even lawful and it’s highly unlikely that the bill will make it beyond the Republican controlled House. Yet, if you detect a hint of desperation in this move, you would be correct. The federal government played the game well in undermining Utah state’s position on same-sex marriage — but, per the Supreme Court DOMA ruling of last year, the Obama administration probably could not have acted differently even if it had wanted to.
We know that some religious conservative groups, including the legal group the Alliance Defending Freedom, do not want to throw in the towel on fighting marriage equality and preserving gay marriage bans, but in a recent statement to the Christian Times on just this topic, they’ve said they are interested in carving out protections in states where gay marriage is an inevitability.
The game is changing now and the marriage equality movement will have to change with it. Religious freedom is guaranteed at the federal level so this kind of legislation is motivated by an appetite for ensuring greater religious privilege. The marriage equality movement will need to fight this attempt to preserve inequality with both strength but also a keen ear to ensure that at no point can the Religious Right get away with playing the victim. Whatever happens, it also seems clear this new effort to discriminate cannot be ignored.
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