Alarmed by the broad expansion of same-sex marriage set in motion by the U.S. Supreme Court, religious conservatives are moving their fight to state legislatures — seeking exemptions that would allow some groups, companies and people with religious objections to refuse benefits or service for gay spouses.
But winning sweeping carve-outs for faith-affiliated adoption agencies or individual wedding vendors will be an uphill battle. Public attitudes against exceptions have hardened, and efforts by faith groups in states where courts, not lawmakers, recognized same-sex unions have had little success.
"When the judiciary does it they don't do the kind of balancing that legislatures tend to do," said Tim Schultz, president of the 1st Amendment Partnership, which has organized legislative caucuses focused on religious liberty in 20 states.
Every state legislative debate over gay marriage has addressed the question of whether religious objectors could be exempt in any way from recognizing same-sex unions. But in states where same-sex marriage became law through the courts, only one, Connecticut, followed up by enacting significant new exemptions. Massachusetts, Iowa and New Jersey have provided no opt-outs for gay marriage opponents.
Until recently, gay rights groups accepted some exceptions to pick up badly needed votes from conservative lawmakers. But that political pressure has dropped as acceptance of same-sex unions has grown. Gay advocates say broad carve-outs perpetuate the very discrimination they had been working to end.
That argument gained currency after the Hobby Lobby ruling last June. The high court decided the arts-and-crafts chain and other closely held private businesses with religious objections could opt out of providing employees the free contraceptive coverage required by the Affordable Care Act. While conservatives rejoiced, liberal groups were outraged, and many vowed to aggressively oppose exceptions for faith groups. Soon after, prominent gay rights and civil rights groups withdrew their support from the federal Employment Non-Discrimination Act, or ENDA, because of the wide reach of its exemption.
"I think there's a broad consensus that the rules should apply to everyone, which is why we withdrew our support from ENDA," said Jennifer Pizer, senior counsel at the national gay rights group Lambda Legal. "If you have different standards, then it communicates a message that some kinds of discrimination are not as serious as others."
The religious exemption fight isn't about what happens inside the sanctuary. First Amendment protections for worship and clergy are clear. The concern instead is for religious organizations with some business in the public arena. That category includes faith-affiliated associations that rent their properties to the public for wedding receptions; religious charities that provide adoption and other social services, often with government funding; and individual religious objectors such as justices of the peace, government clerks or business owners.
The exemptions approved so far have generally been much narrower than faith leaders sought, although opponents did win some meaningful concessions. About a half-dozen states allowed religious associations, such as the Knights of Columbus, or some faith-based nonprofits to deny specific benefits for gay couples — such as insurance for spouses — or refuse to serve them. A few states allowed privately funded adoption agencies to refuse to place children with gay couples. Religiously affiliated marriage support programs, such as Christian couples' retreats, were exempted in several states. But many of the states only reiterated First Amendment protections for worship.
Still, the high court decision last week to turn away appeals by states trying to protect their same-sex marriage bans moves the debate over exemptions into territory that is more conservative, politically and religiously. Utah, Nevada and Idaho are heavily Mormon. South Carolina, where the attorney general is fighting to uphold the state's gay marriage ban despite the court ruling, is largely evangelical Protestant.
"Some of the states are so red — think South Carolina — that the legislature can likely lock down all kinds of religious liberty protections, even those we have not yet seen adopted anywhere, like protection for the small mom-and-pop wedding professionals, simply because they have the votes of like-minded colleagues," said Robin Fretwell Wilson, a family law specialist at the University of Illinois, Champaign, who tracks exemptions in state laws.
State Rep. Jacob Anderegg, a Utah Republican, said he plans to reintroduce a religious exemptions bill he had temporarily shelved amid the federal court cases on gay marriage in the last two years. His bill would allow anyone authorized by the state to solemnize marriages — including clergy and justices of the peace — to refuse on religious grounds to preside at same-sex marriages.
"The bill reasserts and re-establishes fundamental principles: I have a religious objection. You can't force me or compel me to do it," Anderegg said. He expects a few other exemptions to be proposed in the next legislative session.
Eric Hawkins, a spokesman for The Church of Jesus Christ of Latter-day Saints, would not comment on any plans by the church to seek exceptions.
Cathi Herrod, president of the Center for Arizona Policy, a conservative advocacy group, said her organization was still analyzing the impact of the court decision and hadn't yet decided on strategy. But she said, "the priority is to assure religious liberty is protected." She said the public can be moved to support religious exemptions through the cases of wedding cake bakers or photographers who have faced discrimination complaints for refusing to serve same-sex couples.
"Our challenge is to get those stories out," Herrod said.
But a controversy in Arizona last February over exemptions showed the limits on the public acceptance of broad opt-outs, even in conservative-leaning states. When state lawmakers expanded protections in the state's Religious Freedom Restoration Act, the national backlash from business leaders, gay rights groups and others was so intense that Republican Gov. Jan Brewer vetoed the measure.
Advocates for the bill said critics massively overreacted. Proponents argued the bill would have given objectors only the chance to bring a religious liberty claim before a court. But critics argued the legislation would have effectively allowed businesses to refuse service to gays and lesbians without penalty, especially given that Arizona has no statewide nondiscrimination policy that covers sexual orientation.
"There will be a temptation to enact broad exemptions in states that otherwise would oppose same-sex marriage," said John Green, a religion and politics expert at the University of Akron's Bliss Institute for Applied Politics. "However, overly broad exemptions can backfire as well: They can be perceived as intolerant and discriminatory."