Just one month after the landmark Supreme Court decision that legalized same-sex marriage in 2015, Ryan T. Anderson, a researcher at the Heritage Foundation, turned to the anti-abortion playbook.
“Everything the pro-life movement did needs to be done again, now on this new frontier of marriage,” Anderson wrote in Truth Overruled: The Future of Marriage and Religious Freedom. Following the Supreme Court’s ruling that legalized abortion, Anderson says, “Courageous pro-lifers put their hand to the plow, and today we reap the fruits … More state laws have been enacted protecting unborn babies in the past decade than the previous 30 years combined.”
Three years later, the strategy is in effect and working. By using the same tactics that eroded access to abortion after Roe v. Wade in 1973, Republicans are stockpiling state laws that make married life for gay couples more difficult and unequal.
Kansas Republican Gov. Jeff Colyer signed a law this month that allows taxpayer-funded adoption agencies to reject applicants, including gay couples and divorcees, based on their religious objections. A week before, Oklahoma Republican Gov. Mary Fallin signed a nearly identical law.
These new laws are reminiscent of a November 2015 law passed in Michigan, which Kristy and Dana Dumont sued over in federal court last fall because a publicly funded Catholic adoption agency allegedly refused to serve them for being gay. The couple’s first court hearing is in July.
Unlike Indiana’s religious freedom law, which became a national flashpoint in 2014 and was effectively rescinded due to the backlash, these narrower, targeted bills wind up on the books with little brouhaha. The encroachment has been largely overshadowed by the political hurricane of the Trump administration. The tailored religious objection measures don't attempt to repeal the right of gay couples to marry, but rather, they create a creeping body of law that says gay couples can be denied the accessories of marriage that society deems crucial to recognizing a union: adopting kids, wedding cakes, couples counseling, health care services.
“What we see now is the leading edge.”
To name a few examples of laws: A North Carolina law lets magistrates opt out of performing marriages, and a law in Mississippi protects those who discriminate on the basis of same-sex marriage in employment, business transactions, housing, and issuing marriage licenses.
Some of the bills reflect templates provided by the advocacy group Alliance Defending Freedom, much the same way Americans United for Life churns out model legislation to curb abortion.
In Arkansas, North Carolina, and Tennessee, meanwhile, cities can no longer pass LGBT nondiscrimination ordinances — so a couple can get married, but it’s not explicitly illegal for them to be fired for their same-sex marriage.
Mary Bonauto, a leading civil rights lawyer who argued to legalize same-sex marriage at the Supreme Court, says that same-sex marriages are undermined by these laws.
“Just because we won marriage doesn’t mean that fight ended,” Bonauto lamented in an interview with BuzzFeed News about the aftermath of Obergefell v. Hodges and efforts to overturn it. “What we see now is the leading edge.”
“The marriage is degraded if it’s not treated like other marriages,” Bonauto added. “It’s saying you’re not going to have children, not going to have a family.”
An analysis by the Movement Advancement Project, an LGBT advocacy group, found 12 states now have targeted laws that protect people with religious objections, some explicitly opposed to same-sex marriage. Seven states have laws that ban teachers from discussing gay people or gay relationships — so the children of gay parents can never hear families like theirs recognized during school hours.
The immediate impact of these laws isn’t clear. How many people are actually turned away from adoptions or housing? Do these laws change behavior in states where there’s no law banning LGBT discrimination to begin with? Yet the lesson from abortion opponents is that laws can linger on the books for years, eventually leading to lawsuits that, in turn, create new national precedent at the Supreme Court.
“Folks on the right view the abortion strategy as a model to limit and obstruct same-sex marriage,” Douglas NeJaime, a law professor at Yale, told BuzzFeed News.
Religious recusals from performing abortions were initially considered a nonpartisan way to protect the conscience of doctors, he said, but they have ballooned in scope and have been weaponized to cover everyone from pharmacy workers to receptionists in order to block access to contraception, sterilization, and abortion.
Anderson, the Heritage Foundation researcher, called for religious recusal laws in regard to the Obergefell ruling that allow people to “lead our lives, rear our children, and operate our businesses and charities in accordance with our beliefs — the truth — about marriage.” He also invoked the Hyde Amendment, which blocks taxpayer funds from going toward abortion services.
Texas actually attempted that strategy to defund marriage licenses for same-sex couples in 2015. While the bill didn’t pass, Anderson also made it clear: This would be a multistate effort, over decades.
Conservatives don’t need to pass laws in all 50 states — or move quickly — to open the door for national precedent, as anti-abortion activists proved.
Conservatives don’t need to pass laws in all 50 states — or move quickly — to open the door for national precedent.
Pennsylvania’s Abortion Control Act was passed in 1982 and amended later that decade to place five conditions on women getting abortions. It reached the Supreme Court in the landmark case of Planned Parenthood v. Casey. The court’s ruling didn’t reverse the right to an abortion, as some had feared, but it did allow states to regulate abortions in the first trimester and any other point before viability. This was a decade after the original law had passed.
State laws can even be struck down and still prove useful. A 1997 Nebraska law that banned a type of late-term abortion dubbed “partial birth abortions” was struck down by the Supreme Court in 2000. Congress would respond in 2003 by passing the Partial-Birth Abortion Ban Act, which used less ambiguous language, leading to the landmark 2007 decision in Gonzales v. Carhart, which found the procedure is constitutional.
“Defeat does not stop opponents of abortion,” Reva Siegel, a professor at Yale Law School and one of the leading researchers on abortion policy and litigation, told BuzzFeed News. “It’s turned into a form of community and identity. They are in this for the long game, to take back the Court and reverse the case."
On marriage, she said, "I think you are seeing something analogous happening here. Opponents of gay rights lack the capacity and the democratic support to bring about a categorical overruling of Obergefell, but they are enacting laws designed to tap into ambivalence and license prejudice toward gays in general and toward subgroups of the community.”
One test case on LGBT rights is rising from Mississippi's Religious Liberty Accommodations Act, which was passed in February 2016 to protect people and businesses that object to same-sex marriage and sex outside straight marriage. A lower court blocked the law partly because it protected one set of religious views above others. But then, the 5th Circuit Court of Appeals found it did not violate the First Amendment’s Establishment Clause on its face, and the Supreme Court declined to review the case, thereby allowing it to take effect last October.
How laws like Mississippi’s can be used in practice could be affected any day now, when the Supreme Court rules in Masterpiece Cakeshop v. Colorado Civil Rights Commission. A Colorado baker in the suit claims he has a First Amendment right to turn away gay couples seeking a custom wedding cake, even though state law forbids businesses from discriminating based on sexual orientation. The court could allow such behavior on religious grounds for wedding services — or other venues, from employment to restaurants.
Bonauto believes, however, that same-sex marriage may enjoy armor that abortion doesn't, since the Supreme Court’s ruling for same-sex marriage was based on both the fundamental rights to marriage and the constitutional right to equal protection, protecting gays from discrimination. “As long as we have the equal protection part of the ruling, it should circumscribe how far our opponents can get in the short run,” she said.
She notes that the backlash to marriage began even before the decision came down in 2015 — and LGBT advocates have been staving them off for years.
Yet Bonauto worries religious conservative are building up a body of examples that suggest marriage rights are imposing on religious rights, thereby creating new facts that arguably could persuade courts to revisit the rights of marriage. “Now they have grabbed this narrative that they are being put upon,” she said of the religious right. “It sets up an argument that the controlling law can be altered as well.”
Likewise, NeJaime said that if religious recusals don’t weaken the rights for gay married couples, conservatives can try overturning the 2015 decision entirely. “That’s a scary prospect,” he said. “You just need one state legislature to pass a law that directly contravenes Obergefell, and that allows the court to revisit it.”
But all this has largely flown beneath the radar during the Russia investigation and the growing popularity for same-sex marriage in opinion polls.
By way of comparison, the initial backlash to the Roe decision, which landed in January 1973, came as the nation was engrossed in another presidential drama — the Watergate scandal and Nixon’s resignation, which came in August 1974.
“I actually think there’s a bandwidth problem,” Bonauto said.