June 26 marks the first anniversary of Obergefell v. Hodges, in which the Supreme Court decided that the Constitution requires the recognition of same-sex marriage. The decision's implications remain as uncertain and controversial today as they were one year ago.
By: Matthew Quallen
Last month, the battleground over religious freedom in the United States shifted southward. On March 22, North Carolina Governor Pat McCrory signed a law rolling back municipal protections for gays and lesbians and banning transgender people from using bathrooms other than those corresponding to their assigned sex. The nation erupted. A week later, Georgia Governor Nathan Deal vetoed a bill, the “Free Exercise Protection Act,” aimed at protecting organizations that might withhold services or employment from some on the basis of religious beliefs. (The majority of Americans oppose such laws.) Another week later, on April 5, Governor Phil Bryant signed a similar bill into law in Mississippi.
The backlash has been quick and ferocious. States and municipalities have banned travel to Mississippi and North Carolina. Dozens of companies have protested the bills, even cancelling planned expansions in either state. Bruce Springsteen cancelled a concert in North Carolina. And the British government issued a travel warning—of the sort usually reserved for tropical diseases and conflict zones—to LGBTQ travelers bound for North Carolina and Mississippi.
Almost universally, dissenters to these laws have cast them as attacks on the rights of LGBTQ people to enjoy services and facilities: as clear-cut cases of discrimination. What’s more, advocates and dissenters alike have piled these laws onto the religious freedom raft. To many Americans, religious freedom has become synonymous with homophobia.
Blame for this phenomenon falls everywhere. In North Carolina, the Governor has expressed skepticism over laws under the rubric of religious freedom. The campaign that propelled North Carolina’s House Bill 2 to victory relied more on vicious stereotyping and fearmongering about transgender men and women than appeals to religious freedom. Nevertheless, detractors and commentators have classed the bill as a religious freedom bill.
The same could not be said of Mississippi’s bill, or similar bills. That bill was dubbed by its supporters the “Free Exercise Protection Act,” and, according to NPR, specifically protects the exercise of only three beliefs: “that marriage is between a man and a woman, that sex is ‘properly reserved to such a marriage,’ and that words like ‘male’ and ‘female’ are 'objectively determined by anatomy and genetics at birth.'” The gist couldn’t be clearer: Religious freedom permits the firing of, discipline of, or denial of service to gay, lesbian, and transgender Mississippians.
That religious freedom can permit discrimination against gays and lesbians—and that is what many of these laws argue—poses a dangerous problem. For one, it threatens the rights of LGBTQ Americans, who must fear being denied adoptions, jobs, and basic services by those who consider it their religious conviction to withhold them. But the perceived (and often realized) alliance between religious freedom and homophobia ought to strike fear into the hearts of religious freedom supporters as well; by pitting liberty against equality, they are drawing losing battle lines.
Polling makes clear that opposition to expanding conceptions of LGBTQ equality stands to be steamrolled. Ninety-percent of Americans now believe gays and lesbians should not suffer employment discrimination; and yet Mississippi’s religious freedom bill aims to protect just that, employment discrimination. In the last two decades, support for same sex marriage and opposition to sodomy laws have both doubled. The proportion of Americans who personally know gays and lesbians has tripled. That trajectory shows no signs of reversing.
It is not that Americans do not support the principle of religious liberty. They overwhelmingly supported the Religious Freedom Restoration Act when Bill Clinton signed it into law in 1993. It is instead that Americans are increasingly unreceptive to arguments that there should be exceptions to the principle of equality—a principle seen as necessarily impermissive to exceptions. The result is troubling: a once agreed upon principle dutifully falling on its sword.
The repercussions of religious liberty’s LGBTQ tangle are particularly severe on the international level. Unable to agree on what religious freedom means at home, Americans are unexcited to support religious freedom abroad, where it faces far more serious threats than a trumped-up queer bogeyman. It is hard for the State Department to sell policies in which Americans do not believe. Woe to those in need of our aid: Rohingya fleeing Myanmar, Yazidis in the path of ISIS’ war machine, Kenyans terrorized by al-Shabaab.
Those who seek to fortify religious freedom globally, who want to find a broad message that will appeal to the young and less religious, ought to heed a warning. Unless they can thoroughly decouple their efforts from legal protection for discrimination, religious freedom advocates in the United States should expect only the most meager of gains.
Matthew Quallen graduated from Georgetown's School of Foreign Service in 2016 with a major in international history.
This piece was originally authored on July 13, 2016 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.