The Supreme Court’s decision that the constitution grants Americans the right to marry who they choose has produced the expected backlash. The advent of same-sex marriage has mobilized state legislators across the country to introduce a number of bills that would restrict the rights of LGBT citizens, all in the name of protecting religious freedom.
One particularly broad example of such a law comes from North Carolina. In March, in a span of just 12 hours, the North Carolina General Assembly and Senate approved, and Governor Pat McCrory signed, a bill that prohibits local communities from enacting ordinances that would ban discrimination based on sexual orientation or gender identity. The impetus for the bill was a measure enacted by the city of Charlotte that prohibited discrimination against gay, lesbian, bisexual, and transgender citizens.
Besides banning local antidiscrimination ordinances, the bill requires all government-controlled facilities, including schools and universities, to provide single-sex, multiple occupancy bathrooms and locker rooms, and requires individuals to use the bathroom that corresponds to their gender at birth. In enacting the bill, North Carolina lawmakers focused on the bathroom. Like many critics of transgender rights, legislators raised the potential problem of men dressing as women in order to enter women’s restrooms and assault women. Really.
North Carolina’s law is, in many ways, a throwback to Colorado’s Amendment 2, approved by Colorado voters in the early 1990s. Like the North Carolina law, Colorado’s Amendment 2 overturned antidiscrimination laws in Denver, Boulder, and other cities, and amended the state’s constitution to provide that neither local governments nor the state of Colorado could enact antidiscrimination laws protecting gay, lesbian, or bisexual citizens. In Romer v. Evans, the Supreme Court declared Amendment 2 unconstitutional under the Fourteenth Amendment’s Equal Protection Clause. The court found that the purpose behind Amendment 2 was to harm LGBT citizens. This was impermissible, according to the court.
Unlike Colorado’s Amendment 2, the North Carolina law does not explicitly forbid local governments from passing antidiscrimination provisions protecting LGBT citizens. Instead, the law prohibits discrimination based on a number of characteristics, including gender and race, but leaves out sexual orientation and gender identity. The law then states that local governments cannot enact their own antidiscrimination measures, thus blocking any measures that would protect LGBT citizens. For that reason, despite the difference in wording, the North Carolina law has the same effect as Colorado’s Amendment 2 and appears to be unconstitutional for the same reason.
More recently, Mississippi’s governor has signed into law a “Religious Freedom” bill that would allow people with religious objections to deny wedding services to same-sex couples. The bill would also allow employers to cite religion in determining workplace policies, including dress codes, grooming, and bathroom and locker access.
While the North Carolina law is unique in its breadth, bills similar to Mississippi’s have been introduced in at least 28 states. Religious freedom is often the rallying cry behind the passage of such bills, but looking into civil rights movements of the past illustrates that religion has often been used to justify discrimination. In South Africa, the Dutch Reformed Church was a vigorous supporter of apartheid. Here in the United States, the Southern Baptist Church supported slavery and segregation for over a century. The Mormon Church did not ordain black men as priests until 1978. These groups were able to cite biblical passages to support their stance, just as opponents of same-sex marriage do today. Yet, claims of religious freedom have never been found to justify racial discrimination.
The First Amendment protects an individual’s “free exercise” of religion. For that reason, a court could not order a priest to perform a same-sex wedding. Baking a wedding cake or preparing a wedding bouquet are not religious activities, however. In fact, at least one court has found that, in the face of an antidiscrimination law protecting LGBT citizens, a photographer cannot claim a First Amendment right to refuse to photograph a same-sex wedding. The recently enacted Mississippi law purports to give a photographer that right. Can Mississippi pass a law giving bakers, florists, photographers, and others a right to refuse to provide these services? Absent a federal or state civil rights statute protecting LGBT citizens, the answer could be yes.
Although these new laws are disturbing to those of us who support equal rights for all Americans, these laws seem to be the last gasp of a failed mission. In fact, Georgia’s legislature recently passed a law similar to Mississippi’s, only to have the law vetoed by the governor. Responding to threats from the business community to take their business elsewhere, Governor Nathan Deal stated, “I do not think we have to discriminate against anyone to protect the faith-based community in Georgia…” In all likelihood, Americans will begin to see laws like Mississippi’s for what they really are: a license to discriminate hiding behind a very selective reading of the bible.
Robert Volk (LAW’78), a School of Law associate professor of legal writing and director of the Legal Writing and Appellate Advocacy Programs, can be reached at email@example.com.
“POV” is an opinion page that provides timely commentaries from students, faculty, and staff on a variety of issues: on-campus, local, state, national, or international. Anyone interested in submitting a piece, which should be about 700 words long, should contact Rich Barlow firstname.lastname@example.org. BU Today reserves the right to reject or edit submissions. The views expressed are solely those of the author and are not intended to represent the views of Boston University.