We are now on the verge of national marriage equality, just one season away. We hear very little public opposition to what is increasingly considered inevitable, other than the apparent attempt at re-secession by the state of Alabama. But that doesn't mean there isn't resistance, which is crystallized these days in "gay wedding cakes," and while we could easily continue to deal with a guerilla war, we're now facing a significant counteroffensive.
We've recently scored a major victory in Indiana, which I detailed in my most recent column. Before I expand on the significance of the national turning point that is Indiana, which I will do in an upcoming column, and address the "Utah compromise," which has received relatively little attention, I'd like to review the recent past and set the table for the events of this past month. In addition, the indefatigable reporter/radio host Michelangelo Signorile has just published a book covering in detail this very topic: It's Not Over: Getting Beyond Tolerance, Defeating Homophobia, and Winning True Equality.
The Republican wave of 2014 did far more damage to equality than flipping the U.S. Senate red; it created a wave of Republican state legislatures, where most of the action is today. Republicans took over the majority in 11 chambers, and today 30 legislatures are controlled by Republicans, 11 are controlled by Democrats, and eight are split. Republicans hold more seats, 56 percent of the total, than at any time since 1920. Fortunately, Republicans only control 24 state governments, where the governor and both chambers are Republican. But state and local governments are the jurisdictions where many of the civil rights protections exist today for the LGBT community, including roughly 225 local jurisdictions covering half the United States population. It is those 24 states that are poised to create a great deal of mischief. (I will add, parenthetically, that there is finally reason for hope. Democrats, who've basically ignored the state scene for the past 30 years, are finally getting their act together by creating the Democracy Alliance.)
The onslaught began building slowly back in the summer of 2013 in Arizona with S.B. 1062, when the legislature passed a bill to amend an existing law to give any individual or legal entity an exemption from any state law if it substantially burdened their exercise of religion, which included public accommodations. The bill was similar to those enacted in 18 other states, from Connecticut to Idaho, and resulted from over two decades of debate on "religious liberty." Along the way we got the federal Religious Freedom Restoration Act (RFRA) of 1993 and, after the Supreme Court ruled that the federal law doesn't apply to the states, a surge of state RFRAs, including Arizona's, as well as state court decisions in the same mode.
The Arizona bill was opposed by the LGBT and civil rights communities as well as many major business leaders, including the National Football League, which had scheduled Super Bowl XLIX in Glendale. The influence of the business community in the context of an LGBT social media campaign caused Governor Jan Brewer to veto the bill in January, 2014. And all the other state RFRA bills, with the exception of Mississippi's, failed as well. But the Supreme Court's ruling in Burwell v. Hobby Lobby last summer, recognizing for the first time a (closely held) for-profit corporation's claim of religious belief, has only fueled the flames of possibility for religious conservatives.
That was the beginning, setting the table for the resistance. The more serious challenge, the frontal assault of the counteroffensive, has consisted of efforts by Tennessee in 2012 and Arkansas last month to successfully preempt any local ordinances protecting the LGBT population. No longer hiding behind a cloak of religious liberty, a principle held dear by most Americans, these bills are "licenses to discriminate," based on the absurd belief that they will improve the business climate. Such hypocrisy undermines the core of true Republicanism, which is the belief that the best government is the one closest to home. By overruling the people's rights to determine their own civil rights protections, they run roughshod over the principle of limited government and, paradoxically, the rationale behind the "states' rights" slogans of the past two centuries, for what can be applied against the federal government from the vantage point of a state can just as surely be applied from a city looking at the statehouse.
The Arkansas victory has ignited a movement in other state legislatures, which had been focusing solely on expanding religious exemptions. The most massive effort is in Texas, but it should be noted that a Texas business coalition, Texas Wins, led by entrepreneur Mark Cuban, is beginning to resist in the manner of the Arizona model, working with Texas Competes, the pro-LGBT business group, and the Texas Association of Business. The most recent is in Louisiana.
The critical point is that the LGBT community has been caught off-guard. Focused on the cascade of marriage equality victories and leaning in to the Supreme Court arguments next month, our national organizations either have been AWOL or have mounted only minor efforts behind the scenes. When good people do nothing, when those most affected by legislation sit silently or in blissful ignorance, the world is capable of changing rapidly for the worse.
Most striking was the absence of local players on the Arkansas scene. Chad Griffin, the president of HRC who hails from President Clinton's home town of Hope, spoke out diffidently and tardily, and even more striking, neither of the Clintons publicly lifted a finger to either speak against the legislation as it was being considered or call on Governor Asa Hutchinson to veto it. Whatever the reasons, none of that passes for leadership.
But the burden should not just be on them. Most of these bills have been and will be considered in states that have poorly resourced and poorly staffed LGBT organizations. The national community has talked up the need to work on these issues, most notably HRC's $8.5-million "New Southern Strategy" and the major commitment of the Gill Foundation, and while the local activists in these states have succeeded with marriage, with the federal judiciary at their back, their polite, genteel Southern activism has clearly failed to this point in Arkansas, Mississippi and Alabama with respect to broader protections.
So I'm calling on the LGBT residents of those states most at risk, the ones with the greatest number of people protected by local ordinances -- Florida, Idaho, Georgia, Louisiana, Michigan, North Carolina, Ohio, Texas, and West Virginia -- to pay attention! In addition to the two kinds of legislation already discussed, there are currently three bills to ban trans persons from using the appropriate bathrooms.
The question some ask about this counteroffensive is "Why now?" with polling showing a vast majority of Americans supporting LGBT rights and same-sex marriage. As is often the case, it is when one side feels their team losing its grip, with the possibility for victory (no matter how far down the road) slipping away, that the backlash becomes its most furious. This is exemplified by a classic American film comedy from 1978 called Animal House.
The iconic film from the "gross-out" genre of adolescent comedies, with some classic performances by upcoming stars, did touch on some core truths. One comment by Otter, played by Tim Matheson, explains the ferocity of the right-wing counteroffensive:
We gotta take these bastards. Now, we could fight 'em with conventional weapons. That could take years and cost millions of lives. Oh, no. No, in this case, I think we have to go all-out. I think that this situation absolutely requires a really futile and stupid gesture be done on somebody's part.
Bluto, played by John Belushi, responds, "And we're just the guys to do it."
Yes, Bluto, you're just the guys to do it. From Alabama Supreme Court Justice Roy Moore standing in the courthouse door, giving the finger to the federal judiciary, to Florida State Rep. Frank Artiles (R-Miami) fantasizing about men invading women's locker rooms to Indiana Governor Mike Pence caught in George Stephanopoulos' headlights, conservative extremists welcome you to the anti-LGBT counterrevolution.