North Carolina, Mississippi, And 2016’s LGBT Rights Backlash

It's not your imagination: this year has seen a renewed anti-LGBT rights push across the country

Apr 07, 2016 at 5:35 PM ET

Last summer the Supreme Court affirmed the right of same-sex couples to marry. The ruling in Obergefell v. Hodges capped off a 15 year period in which a majority of Americans shifted from opposing gay marriage to supporting it. But while the LGBT community is more accepted and represented in America than ever before, it is now facing an unprecedented flurry of attacks from Republican state legislation across the country. This isn’t a coincidence.

The state bills come in a variety of forms, but they’re united in their goal of finding fresh ways to exclude LGBT Americans. A Kansas law has the relatively narrow goal of allowing student groups at public universities to discriminate based on “sincerely held religious beliefs.” Mississippi’s so-called “religious liberty” bill is broader, allowing businesses and religious organizations to deny service to mainly LGBT people based on their personal beliefs (governors in Georgia and Virginia vetoed similar legislation). And while North Carolina’s recent “bathroom bill,” is not cloaked in piety, its ambitions are frightening. It requires people use the bathrooms of their biological sex, denies cities the from creating their own LGBT protections, and guts the ability of workers to sue their employers for discrimination.

These bills, all from just this year, are far from alone. “There’s really been an uptick over the past three years,” says Andy Garcia, program manager for Equality Federation, a nationwide LGBTQ activist organization. “We’ve never seen anything like this legislative session in terms of bills hostile to LGBT folks.” Last year his group tracked around 80 bills. This year, they’re looking at over 200.

According to those fighting against them, these patchwork bills are cropping up now as a reaction to the Supreme Court’s ruling. The bills are purported to be defensive, attempts to carve out space for certain religious people and institutions feeling put upon by gay marriage or trans women using the same bathrooms as their daughters. But in effect, they’re attempts to make LGBT Americans victims of their own sudden success.

The one big dramatic thing that has happened in the last two years is this Supreme Court decision” says Jeff  Graham, executive director of advocacy organization Georgia Equality. “That has to be driving part of this.”

It seems to be. In praising Mississippi’s recently passed law, Tony Perkins, president of the Family Research Council said in a statement, “No person should be punished by the government with crippling fines, or face disqualification for simply believing what President Obama believed just a few years ago, that marriage is the union of a man and a woman.”

While Obergefell v. Hodges kicked the anti-LGBT push into high gear, bills like the ones in North Carolina and Mississippi began appearing in other states before the Supreme Court ruling. The first legislation Garcia remembers was a 2014 “religious freedom” bill in Arizona that ended up being vetoed by then Governor Jan Brewer in Arizona. “That was the first time that we said oh whoa, this is specifically targeting LGBT folks,” says Garcia. Indiana governor Mike Pence ended up signing a similar piece of legislation last year in March. After severe criticism the Indiana law was altered to clarify it wouldn’t allow discrimination.

Both those bills were intended as state versions of a piece of bipartisan legislation from the ‘90s called the Religious Freedom Restoration Act (or RFRA, pronounced riff-ruh). “The idea behind RFRA at the time was that it would protect people of minority faiths,” says Maggie Garrett, legislative director for Americans United for Separation of Church and State. She says “in the ‘90s we were thinking about protecting people. For instance—a prisoner who wants to have a short beard because of their religious beliefs.” In recent legislation, it’s not being used to allow someone to express their religion, but rather to use their religion to deny access to others. In Michigan, for example, a RFRA bill passed last year that allows faith-based adoption agencies to refuse service to anyone on religious grounds, allowing discrimination against same-sex couples, as well as against single people or religious minorities.

The other major touchstone for “religious liberty” bills is a measure still sitting in Congress sponsored by Utah senator Mike Lee called the First Amendment Defense Act, or FADA. “FADA is the new RFRA I joke,” says Garrett. FADA bills are narrowly focussed on protecting people from gay marriage in their business or organization. “They create this false dynamic that somehow marriage equality is infringing on other people’s religious freedom,” says Garrett. “The supporters of the bills claim that they’re about protecting religious liberty but they’re really about sanctioning discrimination.”

Among other anti-LGBT legislation in the mix are the “bathroom bills” affecting the trans community, 13 of which are in play according to Reuters. Garcia says the bills are presented as “as student safety or physical privacy acts,” and claim that segregation by sex assigned at birth is an issue of safety, especially for girls and women.   

Perkins from the Family Research Council defends North Carolina’s bathroom bill, and implicitly, the attacks it received from the business community, by saying that under the bill “local officials can’t dictate how companies operate. That doesn’t mean businesses can’t pass their own bathroom policies—it means the government can’t tell them what those are.”

Many bills end up being a mishmash of these approaches. In Georgia, Graham says the recently vetoed bill had elements of FADA and RFRA, including a very broad employment provision which “said that faith-based organizations could fire someone on any grounds.” An anti-LGBT bill that passed through the Missouri state senate following a 39 hour filibuster contains three layers, according to Steph Perkins, an activist with Missouri based activist group PROMO. One section says organizations can retain their tax exempt status if they refuse services to same sex couples. Another allows private businesses to deny their services to same sex weddings. The third part of the Missouri law is a Pastor Protection Act, a law which would prevent clergy from being compelled to perform same sex weddings. None of the activists I spoke with had any issue with provisions like this, because, as Garcia notes, they “reiterate protections that already exist in the constitution.”

Although many of the latest crop of discriminatory bills contain a religious justification, they’re not necessarily being supported by a majority of religious authorities. “The faith voices that have opposed this legislation here in Georgia, have been very strong, very vocal, and very unified,” says Graham. He says he was supported in opposition to Gerogia’s bill by protestant denominations, Jewish groups, and even a Baptist group.

The bills don’t seem to have a single origin—though legislators in one state can easily see what bills are making news in one state, and adapt them to their own. But they are supported by Christian groups like Alliance Defending Freedom, a litigation-oriented activist organization Think Progress called the “800-Pound Gorilla of the Christian Right,” and Perkins’ Family Research Council, a self described public policy Christian think tank founded in 1983, which the Southern Poverty Law Center describes as an “anti-LGBT hate group.” Both groups count major conservative activist James Dobson from Focus on the Family among their founders, and both are part of extensive networks of right wing Christian activists.

“There has been an organized opposition for decades now,” says Garcia of anti-LGBT groups at the local, state and national level. Ironically, the organizational opposition to LGBT rights is a distorted mirror of the organizations fighting for those rights. “It looks like the LGBT movement,” says Garcia.