Several states are debating so-called license-to-discriminate bills that, while on the surface seem to be about religious freedom, actually permit business owners to deny service to anyone they believe is gay (and therefore, go against the "religious beliefs" of the merchant). These bills are reacting to incidents in recent years whereby same-sex couples are denied wedding-related services and in many cases have sued the businesses successfully.
Last month's veto of such a law in Arizona could have been a turning point; after all, the governor, Jan Brewer, is a Republican and has never been very gay-friendly. But don't expect to see this trend of discriminatory legislation end anytime soon. Last week an anti-gay Republican Assemblywoman introduced her version of a religious freedom bill in the California Legislature. But with both houses in solid Democratic control and a gay-friendly Democratic governor who's up for re-election this year, her effort will have a quick death in committee. However, these proposals and how to respond to them raise more important questions that deserve some answers, especially from the LGBT community's national leaders and the business community.
First, groups like the Human Rights Campaign seem to want to have it both ways. In a news release about a similar Religious Freedom Restoration Act bill being debated in Mississippi, HRC is advocating further amendments to the bill. It should be flat-out opposed, period. Public accommodations laws prohibit discrimination, while freedom of religion is a constitutionally protected right under the First Amendment. So, one does not have the right to deny services to anyone just because it conflicts with one's religious beliefs. On the other hand, if a gay or lesbian couple seeks out a wedding photographer that they later learn is anti-gay, the easiest solution would be to patronize another business. In our opinion, there is no amendment that would satisfactorily address the fundamental basis of the bill �" which is to deny access to services to a group of people.
Second, during the week of intense outcry against the Arizona bill, SB 1062, many corporations and businesses with offices in the state quickly came out against it. According to CNN, national corporations that opposed SB 1062 included American Airlines, AT&T, Delta Airlines, Intel, Marriott, PetSmart, Starwood, and Yelp. There were many, many more, including Apple and the National Football League, which threatened to move next year's Super Bowl out of Glendale. There were press releases every day that included companies opposed to the bill, because they knew that a discriminatory law would likely lead to a loss of income, either from a tourist boycott or people choosing to spend their money in another state.
And what has happened in the weeks since Brewer vetoed the bill? Nothing. Why did all those companies stand with the LGBT community in Arizona only to go back to their offices once the bill was vetoed? And why hasn't HRC, which has been pushing ENDA for decades, asked those companies to continue fighting for inclusivity on Capitol Hill? These companies could have turned their attention �" and significant lobbying budgets �" to Washington, D.C., where the Employment Non-Discrimination Act has been stalled in the House of Representatives since last year. During the Arizona debate, many politicians, including Republicans (notably the state's two GOP senators, Jeff Flake and John McCain), said the bill went too far and supported its veto. If politicians need more evidence that an inclusive ENDA is needed, they need only look to the failed effort in Arizona, where the state came dangerously close to legalizing LGBT discrimination.
Clearly whatever strategy HRC has for passing ENDA has run its course in the GOP-controlled House, so new tactics are needed. The organization should leverage the hundreds of companies that it surveys every year in its Corporate Equality Index (many are the same ones who stood with the community in Arizona) and encourage these businesses to lobby lawmakers with regard to ENDA.
The only reason right-wing reactionaries are pursuing these license-to-discriminate laws is because they have lost the fight on marriage equality. That issue was largely won last year with the U.S. Supreme Court's decision in United States v. Windsor, which threw out a key provision of the Defense of Marriage Act. Instead of accepting that decision and moving forward, some Republican lawmakers at the state and national level want to go to extreme lengths to continue denying equality to LGBT people. It's time for business leaders to stand up and say, "No, we treat our employees and customers equally." And it's time for HRC to harness this energy from corporate America to persuade the House to call for a vote on ENDA.