At an event in Phoenix, Arizona, last September, a senior attorney at the Alliance Defending Freedom (ADF) was asked by an audience member whether laws that purport to protect religious freedoms could also be used by a restaurant that didn’t want to serve a same-sex couple.
The lawyer, Joseph Infranco, gave an answer that could have enormous implications for how Americans now grapple with the development of LGBTQ rights in the wake of the U.S. Supreme Court’s recent decision on same-sex marriage.
“Even if you have certain rights, I just think it’s a lot clearer for people when the objection is, ‘I don’t want to be a part of a ceremony that my religious beliefs prohibit,’” said Infranco, referring to the commonly made distinction between wedding ceremonies, versus the denial of general services to LGBTQ people.
Rewire obtained an audio recording of the 2014 event—held at the Arizona Chamber of Commerce—which was a discussion of the then freshly minted U.S. Supreme Court decision in Hobby Lobby and Conestoga Woods. That ruling said that certain companies have religious freedoms that can trump individual rights created by state and federal laws.
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Infranco continued: “The sort of general idea that there’s people I don’t want to serve just because I don’t like those sort of people is a much more societally, a much more problematic … I don’t doubt that there are people who have that view, but that’s not been the cases that we’ve seen. The cases have been limited to, ‘I don’t want to be a part of the event.’ But you know there’s always this matter of individual conscience,” Infranco said. “The publicity will be a major headache.”
Infranco’s views on the meaning of religious liberties laws matter because of his position of power at the Alliance Defending Freedom, the radical fundamentalist Christian group that has been the legal architect of some of the most important lawsuits that have tested the limits of those liberties. Their lawyers played a central role in shaping the winning arguments in Hobby Lobby, and the group is now a central player in pushing to expand the use of so-called Religious Freedom Restoration Acts (known as RFRAs) to thwart efforts to protect LGBTQ rights.
Infranco’s answer is telling because of what he did not say. He did not condemn the idea that a restaurant would refuse service to LGBTQ people; nor did he say that RFRAs would not cover that scenario. Instead, he coyly followed the public story that has been told by ADF and other LGBTQ foes—that they are really concerned about religious people being forced to participate in same-sex wedding ceremonies, in violation of their conscience.
But at the same time, Infranco’s answer indicates a “wink-wink, nudge-nudge, say-no-more” admission that RFRAs could indeed be used to assert religious “freedoms” that extend far beyond the narrow confines of wedding ceremonies.
In a written statement in response to Rewire’s questions about Infranco’s comments, ADF spokesperson Greg Scott maintained Infranco was explaining the “important distinction between general services and participating in an event (such as a wedding) that violates one’s conscience.”
“It’s not the identity of the customer, but the nature of the event that matters,” Scott wrote. Referring to the scenario presented by the audience member about a restaurant refusing service to a same-sex couple, Scott said, “ADF would not take the case of a business owner who kicked someone out of their establishment.”
But legal experts on RFRAs told Rewire that there are many plausible scenarios where these laws could allow exactly that kind of discrimination.
Marci Hamilton is a professor at the Cardozo School of Law and a leading expert on extreme religious liberty. She said that each of the 21 states that already have RFRAs have drafted them slightly differently. Courts could also interpret these laws in a variety of ways, leading to a patchwork of laws and decisions around the nation.
Hamilton said, however, that the underlying strategy of RFRA backers is the same.
“They’re trying to set up a universe where they can continue to be in their bubble where they don’t have to deal with people they don’t like,” Hamilton told Rewire. “That’s why you’re seeing such a fast and furious drive to get laws in place to permit discrimination against LGBT people.”
Indeed, recent years have seen a rush by states to pass RFRAs, according to an analysis by Rewire. In addition to the 21 states that already have RFRAs in place, this year 33 states moved to introduce or amend their religious freedom laws. That’s a marked increase in activity since 2012 when only ten states sought either to introduce or amend their religious freedom laws.
LGBTQ rights advocates are keenly aware of the threat posed by RFRA laws, and have launched a new campaign to pass federal laws protecting LGBTQ people from all forms of discrimination.
On the other side of the divide, anti-LGBTQ activists are attempting to claim the moral high ground, casting their arguments in genteel language and almost friendly tones, arguing in favor of a “balance” between competing rights.
In a speech entitled, “Why Can’t We All Just Get Along?” ADF’s senior vice president Kristen Waggoner called for “toleration” of religious beliefs.
“We’re getting to a place where Americans are being forced to surrender their constitutionally protected freedoms, their freedom of association, their freedom of expression, the freedom of religion, the freedoms that have made our nation great, that have given us a cherished diversity,” Waggoner said in the speech, which was posted by the organization to YouTube in March.
“But here’s the good news for you,” she continued. “In this nation we also have a strong, noble, rich history of successfully balancing religious liberty against other important governmental interests.”
And in an appearance on CBS’ Face the Nation Sunday, Ohio Gov. John Kasich, who is widely expected to declare himself a Republican presidential candidate in the near future, also called for striking a “balance.”
“Look, I believe in traditional marriage, but the Supreme Court has ruled, and it’s the law of the land, and we’ll abide by it,” he told host John Dickerson. “Religious institutions, religious entities, you know, like the Catholic Church, they need to be honored as well. And I think there’s an ability to strike a balance.”
However, as the decision in Hobby Lobby showed, what religious fundamentalists consider to be a “balance” can frequently result in the outright denial of rights to citizens who don’t conform to an extremist view of Christianity.
In the absence of federal and state laws that specifically protect the rights of LGBTQ individuals, the Supreme Court’s decision on Friday could, in retrospect, appear to be a very narrow ruling that does little to ensure that LGBTQ people will be free from discrimination at work, in housing, and in service from general businesses.
Certainly, that is what fundamentalist Christian organizations are banking on.
Brie Shea contributed research to this report.