Religious liberty advocates, on the heels of a spate of court rulings knocking down multiple state Constitutional Amendments banning gay marriage, have in numerous states unveiled predictable religious liberty bills. In Arizona, the GOP controlled legislature passed the legislation on a party-line vote but GOP Governor Jan Brewer, no social moderate, recently vetoed the legislation. The GOP legislature does not have the numbers to overturn her veto nor will they try.
In Idaho (my home state), a religious freedom bill was pulled amid objections from “Add the Words” proponents. The “Add the Words” campaign is dedicated to enshrining in Idaho’s Constitution job and workplace discrimination protections for the LBGT community. Try and forget for a moment that government cannot force somebody to stop believing something they already do. So far, the GOP dominated legislature has not acted on their cause and as a result tensions have come to a head in the session. In early February objectors were removed from the Senate floor and a steady number of objectors have been present in the Capitol ever since.
Notably, Idaho like many other GOP controlled states, is not inclined to support the gay marriage cause. However, it is likely that it is only a matter of time before a lawsuit comes alleging discrimination based on Idaho’s Constitutional Amendment against gay marriage. Indeed, the ball is already rolling that way. The Idaho Supreme Court recently ruled that gay couples could adopt children regardless of their orientation.
The debate on gay marriage today is distinct from several years ago when the first few states approved it (whether through legislative or judicial action). Consider the example of New York. While legislators were concerned about religious freedom objections, such as priests being forced to violate their convictions and marry LBGT members, a compromise was reached where churches and their pastors could object to marrying a gay couple. This compromise resulted in a successful legalization of gay marriage in the state.
Since that time, only a few years in the past, the gay marriage landscape has tilted dramatically in advocates favor. Numerous polls show ever-growing support for gay marriage nationally. Now the battle being waged appears to be on a zero-sum playing field (everything gained has to be taken from somebody else). As a result, religious liberty bills have begun popping up to avoid recent individuals being forced to violate their religious objections to gay marriage. Two examples of this stand out. The first comes from the state of Washington where a Seattle baker allegedly refused to bake a cake for a gay couple’s wedding. As a result, the state Attorney General and DOJ have come down hard on the individual. In Oregon, a florist refused to provide flowers for a gay couple and is being investigated by the state’s Attorney General. These incidents have not gone unnoticed by social conservatives and religious liberty advocates.
Which lens you view the debate through probably depends on your stance on gay marriage. But even among supporters of gay marriage (myself included) opinions can be swayed on the issue by how it is worded. Few individuals would support laws that force churches to marry gay couples against their will. Meanwhile, few individuals also support gays being allowed to be treated as second class citizens, something the striking down of DOMA and legalizing gay marriage, is supposed to address.
For proponents of gay marriage the striking down of DOMA is not nearly enough. To them this is a zero-sum game where people who object to gay marriage must be bigots and yes I have personal experience with being labelled this for understanding the religious liberty objection. The latest comparison is to call religious freedom bills “A return to Jim Crow Laws.” A little far fetched but gay marriage proponents seem to be aided by a community that has a new stake in the game; the business community. According to reports, the business community has sent a letter to AZ Governor Jan Brewer urging her to veto the legislation. Their concerns stress the economic and business cost to the state and industry. Fortunately they leave out the people who oppose gay marriage or understand the religious liberty objection are bigots part. The same phenomenon was seen here in Idaho where numerous Boise based businesses, the City Council and thousands of supporters helped to urge the legislature to shelve the bill.
Where the debate goes into the future is hard to predict. But one thing is becoming increasingly clear. Social conservatives used to be able to rely on the GOP to be in support of their efforts. Now they cannot and the addition of business interests aiding the gay marriage side has muddled things further. For numerous states seeking to find a middle ground on the issue or take a side the new zero-sum nature of the debate does not aid their efforts.
From the libertarian perspective this new dimension is incredibly important. While gay marriage is becoming increasingly accepted there is also the danger that society will use the government to force people to agree with a majority stance. That is partly why the Add the Words supporters argument is fairly simplistic if they think adding words to the Idaho Constitution will suddenly end all discrimination towards them. They should be working more to change individual opinions and not so much getting several words added to a piece of paper.
In the past government action has worked but also had nasty and unintended racial and electoral side effects (see my posts on the impact of the VRA). Furthermore, the government action has tended to not change the views of current generations but only future ones. As a young libertarian-minded conservative it is important that future bills have language that avoid people’s moral objections being violated but also not allowing blatant discrimination. Proponents of gay marriage should work more to change the hearts and minds of people in Idaho and not so much on getting a piece of legislation passed. I just don’t see it though.