Some major developments in the struggle for gay rights are obvious, such as the end of the ban on military service or states permitting people of the same sex to wed. Other times, developments are just as substantial but far more subtle. The recent events surrounding Indiana’s Religious Freedom Restoration Act are examples of this less obvious kind of progress, although they are significant and potentially monumental.
Most people in this country would be startled to learn that in most states gays and lesbians have no job protections; an employer can fire a person or refuse to hire a person simply based on that person’s sexual orientation. It was only as of this month that there were any express federal anti-LGBT workplace protections, a result of President Barack Obama’s executive order, an order of limited reach that covers less than 20 percent of America’s workforce. Really.
One would never know this to be the lay of the land based on the recent kerfuffle over Indiana’s new law and similar laws passed or pending in other states, such as Arkansas and Michigan.
Let’s be honest. Much of the confusion arising from these laws has been due to their proponents’ refusal to acknowledge forthrightly the legislative purpose behind the laws. There can be no doubt that the basis for Indiana’s law was largely a reaction to gays and lesbians being permitted to marry in the state. The same goes for Arkansas, Michigan and other states where such legislation is pending.
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While most Americans now favor the right of gays and lesbians to marry, there is a significant and vocal minority who passionately oppose expanding the definition of marriage. Thus, as a deliberate action to push back against marriage equality came legislation designed to permit those who wished to discriminate against gays and lesbian couples the right to do so in the name of religion.
The impetus was to protect a certain kind of religious baker from having to provide a cake for a same-sex wedding, a photographer from having to take pictures at the event, or even a banquet hall from having to rent its facility for the celebration.
But something truly astonishing has happened. Rather than acceptance of the idea that business owners could use their religious tenets to discriminate against the LGBT community in the provision of services, there has been a powerful pushback from the business community (Walmart and Apple, for example), sports organizations (the NCAA), and various elected officials of both parties (the Republican mayor of Indianapolis). Indiana’s law and Arkansas’ law were changed to expressly forbid anti-LGBT discrimination by the request of their Republican governors, causing a remarkable change in the legal landscape of those states when it comes to LGBT rights.
Proponents of these laws were surely caught off guard by this strong negative reaction to the discriminatory legislation. And many are angered by it. One only needs to read the impassioned emails from the Family Research Council and other religiously conservative organizations to see how upset they are that limits have been placed on these businesses’ right to discriminate against LGBT persons and couples.
Indeed, they are not done. Some members of Congress plan on introducing legislation soon that would prohibit the federal government from penalizing people for their personal moral or religious objections to same-sex marriage, thereby permitting discrimination in federal employment, contracts, grants and more. Such legislation is likely unconstitutional. And the proponents will likely learn that it is not popular.
It is clear that most of the public has a real distaste for discrimination. Many Americans still remember when people were denied goods and services simply because of the color of their skin. It surely will not be long before more states provide its LGBT residents anti-discrimination protections, even though the progress on this front has been slow. The future portends less anti-LGBT discrimination, not more of it.
The U.S. Supreme Court will be deciding this term whether LGBT persons must have access to the institution of marriage throughout the nation. The court has worried about getting ahead of the American people. The latest reaction to these efforts to permit anti-LGBT discrimination is just further proof that the public is ready. Equality and fairness are having their day, slowly but surely.
Lawrence C. Levine is a law professor at the University of the Pacific, McGeorge School of Law.