Americans United for Separation of Church and State, a self-described religious liberty watchdog group, launched an initiative Tuesday to fight back against attempts by social conservatives to use the notion of religious freedom to deny services to people, especially to same-sex couples.
This initiative—called Protect Thy Neighbor—will involve lobbying, litigation, and a public-education campaign, Americans United leaders announced during a press conference at the National Press Club in Washington, D.C.
This multi-pronged campaign is an effort to curtail what the nonprofit predicts will be a relentless backlash from religious right groups against the Supreme Court’s momentous marriage equality ruling last month.
“Same-sex couples may have won the right to marry, but that doesn’t mean that extreme fundamentalist zealots who oppose any expansion of LGBT rights are going to sit by quietly,” said the Rev. Barry Lynn, Americans United’s executive director. “I expect to see a plethora of bills, regulatory changes, executive orders from governors, policy changes and so on designed to resist the Supreme Court’s ruling.”
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The right-wing backlash has already begun.
In recent years, several states have proposed laws broadening citizens’ and businesses’ ability to discriminate—by, for instance, refusing to place a baby with a same-sex couple or denying even third-party insurance coverage of contraceptives—citing religious freedom. Americans United has represented plaintiffs challenging such claims at the state and federal level.
Thirty-three states this year proposed or amended Religious Freedom Restoration Acts (RFRAs), and already 21 states have so-called religious freedom laws on the books.
Recently Arkansas, Indiana, and Louisiana’s Republican-majority state legislatures faced heavy backlashes after trying to codify discrimination through so-called religious freedom laws. Taking matters into his own hands, GOP presidential candidate and Louisiana Gov. Bobby Jindal in May issued an executive order to “prevent the state from discriminating against people, charities and family-owned businesses with deeply held religious beliefs that marriage is between one man and one woman.”
As an example of the kind of work Americans United plans to do through Protect Thy Neighbor—in an effort to challenge these new policies—the group’s legal department plans to send out memos to officials in every county in Texas, cautioning them that they have no legal right to deny wedding licenses to same-sex couples, in contradiction to what Texas Attorney General Ken Paxton has said.
Bills and lawsuits invoking religious beliefs to deny services social conservatives disapprove of is nothing new. What is new, Americans United legislative director Maggie Garrett said, is “the quantity, boldness, and heightened rhetoric that accompanies these bills.”
Less than two weeks have gone by since the Supreme Court justices ruled 5 to 4 that it is unconstitutional for states to prohibit same-sex couples from marrying (and that states must recognize all legal marriage licenses issued by other states). National social conservative nonprofits have already declared war on the ruling, telling their supporters that the marriage equality decision infringes upon their faith.
“Activists and governments throughout the country will use the Court’s ruling as a basis to punish people who stand for the truth about marriage,” Alliance Defending Freedom (ADF) President Alan Sears wrote in a recent fundraising email. “The goal will be to silence you—and prohibit you from living out your faith in the world.”
“Make no mistake about it,” National Organization for Marriage (NOM) President Brian Brown said in a statement shortly after the Supreme Court announced its decision, one he called “immoral and unjust.” “The [NOM] and countless millions of Americans do not accept this ruling. Instead, we will work at every turn to reverse it.”
Protect Thy Neighbor is a three-tiered strategy: Americans United’s team intends to lobby state and federal lawmakers to oppose what Lynn described as “dangerous legislation”; challenge these laws in court if they do pass; and educate the public through its brand-new website, which will track so-called religious freedom bills and lawsuits.
One piece of legislation that Americans United will lobby against is a federal bill that groups like ADF and NOM are pushing as a first step to resisting marriage equality.
Rep. Raúl Labrador (R-ID) and Sen. Mike Lee (R-UT) re-introduced the First Amendment Defense Act (FADA) about a week before the Supreme Court ruled in favor of marriage equality. FADA is similar to Louisiana’s new executive order and states that “the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”
The law specifies that, in this context, discrimination includes withholding or terminating contracts, grants, loans, or accreditation to taxpayer-funded institutions, such as schools, homeless shelters, adoption agencies, or churches. Garrett said Americans United opposes this bill—which has 69 co-sponsors in the House and 21 in the Senate, including GOP presidential candidates Sens. Ted Cruz, Lindsey Graham, and Marco Rubio—because it would “sanction government-funded discrimination.”
Garrett told Rewire in an email that because the bill applies to government employees, it could effectively permit a government employee at the Federal Emergency Management Agency from refusing to provide help to a same-sex couple who lost their home in a natural disaster.
Lynn, who is an ordained minister in the United Church of Christ, said he supports Americans’ right to believe and worship as they see fit and to speak their minds. He pointed out that the Supreme Court decision in Obergefell cannot force ordained religious leaders or houses of worship to participate in same-sex weddings (or anyone’s wedding), which is a claim opponents of marriage equality have argued.
Where Americans United’s view of religious liberty radically diverges from social conservative groups’ is in the belief that private businesses or taxpayer-funded groups do not have the right to refuse to serve LGBT patrons and then claim their religious values preclude them from participating in ceremonies like same-sex marriages.
And this is the semantic game groups like ADF have played in their efforts opposing LGBTQ equality. These groups have adopted the narrative that it is not OK to deny service to a person for being gay but that it is fine to refuse to make a wedding cake for a same-sex couple because that would amount to an endorsement of their marriage, which would go against their religious beliefs.
Rewire recently reported that an ADF attorney made this case at an Arizona Chamber of Commerce event last year, shortly after the Supreme Court ruled in Hobby Lobby and Conestoga Woods that these companies have religious freedom rights and can thus deny insurance coverage of certain forms of contraceptives to their employees.
“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,’” ADF senior attorney Joseph Infranco said in a recording that Rewire obtained.
Lynn, reflecting on this notion of participation, recalled the Indiana pizzeria that made headlines during the controversy over Indiana’s initial so-called religious freedom law earlier this year, declaring it would refuse to cater a same-sex couple’s wedding due to the owners’ religious beliefs.
“Participants in weddings—and I do a couple weddings every year—they’re the bride and the groom and the flower girl and the best man and on and on, and maybe the parents and the officiant, whether that’s a humanist officiant or whether it’s a member of the clergy,” Lynn said. “I don’t think you can claim to be the participant merely because you drop off the pizza, or even a more elaborate food product.”