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It’s Not About a Wedding Cake: “Religious Freedom” Laws

Laws protecting religious exclusion expose the current crisis of democracy.

Religious freedom laws are signals of two things: the rise of legal protections for social control and segregation practices, and the growing power of cross-community movement alliances.

Over the last few weeks, religious exclusion bills were introduced, debated, modified and either defeated or signed into law. Basketball fans wore rainbow flags in Indiana; lesbians got arrested on the Georgia Capitol steps; even big business challenged the exclusionary policies.

But these bills are not aberrations or flash-in-the-pan hate legislation. More than 20 states already have similar laws on the books (half of them Southern), and 12 states introduced versions this year, including Georgia. The Indiana and Arkansas bills expanded the legal parameters. The Hobby Lobby decision in 2014 led to these state-by-state bills. The strategy is to test the social and legislative climate for how far states are willing to recodify discriminatory, exclusive, segregationist and violent practices.

Religious freedom is being recodified to justify discrimination based on an individual’s beliefs.

At the height of Jim Crow segregation and violence, groups who were against the Civil Rights Act of 1964 argued that individual people, businesses and churches have the right to exclude and segregate particular groups of people based on religious liberty and individual freedom.

Fifty years later, those same arguments are being written into new drafts of old laws. The religious freedom bills sweeping across the South, Midwest and Southwest this year are about more than protecting gay people from mean bakers.

Religious freedom is being recodified to justify discrimination based on an individual’s beliefs, making anyone who falls outside of a narrow moral vacuum a potential target. If religious beliefs are legally allowed to disregard, diminish or oppose other religions, people’s behaviors or even people’s existence as humans, we are not on a slippery slope: We are swimming in the muck of a new era of social control and segregation.

The religious freedom laws and their byproducts are being introduced at a time of extreme racist hostility and violence. If we see these new codes as applying to or endangering gay people only, we will lose the opportunity to strengthen a social movement based in many communities under attack on multiple front lines.

Using the fear of abortion and gays to push a broader political platform of hate is not new, and LGBTQ communities are growing in strength to be able to confront and defeat these bills. But we should not miss the bigger opportunity. Social justice organizers have a responsibility in this new era to strengthen the alliances between the many communities affected by religious and social fundamentalism.

A few thoughts on crafting our strategies to move forward:

Look to History and Look to the South

As Southern movement organizers, we track historic patterns in order to devise stronger, comprehensive and transformative strategies that achieve victories for all of our people, not at the expense of any. The framework for these laws is based in the Jim Crow South.

The Black Codes crafted in the late 1800s were in direct response and counterattack to the growing political power of the Black community as a result of Radical Reconstruction in the South after official forms of slavery were abolished. Not only were Black people voting in high numbers, but also Black communities were becoming more represented in seats of power at many levels of state legislatures and the US Congress. The social, economic and political restrictions of the Black Codes ushered in Jim Crow laws, policies and vigilante terrorism that ruled the streets, businesses and courthouses for decades.

Immigrant movements are shifting from seeking legal reforms only to fighting the violence of deportations.

Jim Crow frameworks were dismantled by the power of social movement building throughout the 20th century, but re-emerged in the form of the war on drugs launched in 1971, which led to mass incarceration of predominantly Black and Brown communities. The religious freedom angle gained power during the 1980s with the rise of the religious right, with major strongholds in the South, and hit the books in 1993 with the Religious Freedom Restoration Act. Homophobia was a particular fuel that drove efforts to mobilize fear and resentment into political power, as Jean Hardisty asserted throughout her work tracking the patterns of the right.

The legal framework of US democracy was not built for participation or protection of the whole. The rights we have gained or compelled into circulation have been the result of social movements. Legal counterattack to movement success is definitely a pattern, and looking to the South and further back can help guide our steps forward. Part of our charge is to understand what is threatening the power holders and to what lengths they will go to protect their position.

Recognize Movements Rising

Why are the religious freedom bills getting pushed right now? The counterattack is in direct relationship to the rise of today’s movements. The emergence of these bills is related to the victories for marriage equality (37 states now recognize gay marriage) and the growing number of out political figures.

Marriage is winning. The Southern counterattack is local and statewide with national repercussions. The county clerks at the Duval County courthouse in Jacksonville, Florida, home of the district attorney who let George Zimmerman walk for murder and prosecuted Marissa Alexander for protecting herself, decided to stop performing all marriages so as not to perform gay marriages. State Supreme Court justices and Alabama legislators threatened to abolish marriage completely and to ignore federal rulings. Even when these moves don’t stick, they set precedent and allow for more challenges to our minimal gains.

Marriage gains are no replacement for our freedom.

More than marriage, though, broader social justice movements are rising. Immigrant justice movements are shifting from seeking legal reforms only to fighting the violence of deportations and criminalization. The president’s executive order in the fall won relief for people on the scale of millions. A growing number of Black youth are taking action against a system that allows the murders of their peers and then decides these murders are justifiable by law. The trans community is rising in visibility and force to demand the rights and freedoms that have been excluded from non-discrimination ordinances. Muslim families are organizing to confront the war on terror policies that criminalize young people for exercising their freedoms of religion, speech and assembly. Southern movements are uniting across front lines and connecting land sovereignty and environmental justice to civic action to long-term interventions on state violence.

What better time to pass ambiguous laws that allow the state and private sector to legally ignore movement gains.

Anticipate Their Next Move

The first step was taking the religious freedom party bus to the national level and passing the Religious Freedom Restoration Act in 1993. As the Defense of Marriage Act (DOMA) was struck down in 2013, religious freedom bills started being introduced at state levels. Success on the state level will mean new tests. As schools become increasingly privatized and public systems are being handed over to charters, taken over by governors rather than governed by locally elected school boards, they are already the next battleground for what is taught and what we will face as gays in school, Muslim young people or Latino immigrants with or without documentation. What new codes will allow individual religious and social beliefs to dominate our public spaces, our sites of learning and every walk of life?

The Hobby Lobby decision ruled by the Supreme Court in 2014 legalized corporations to hold religious beliefs and disregard federal or state laws that infringe upon those beliefs. Breaking the hearts of many a crafty queer, the legalization of religious exemption from compliance with workers’ benefits and anti-discrimination laws opened a wide door for new interpretations of discrimination. Blurring the public and the private sectors is a strategy that has emerged in force since the 2008 economic collapse and the Citizens United Supreme Court decision on campaign financing in 2010.

Breaking alliances also serves the goals of segregation and hate. The Supreme Court decision to dismantle DOMA happened in the same week in 2013 that they dismantled key clauses of the Voting Rights Act (VRA), seemingly pitting the victory of one group against the defeat of another. Both decisions swung the door wide for new legislation, opening the door for marriage equality in over 20 states since the DOMA decision, and over 170 voter prevention laws passing across the South since the VRA decision. The dichotomy between affected groups is a false one, and we have to anticipate the lie that separates our collective efforts. Of course, the LGBTQ community includes and represents Southern, rural and Black communities who are affected by the voting crisis. We all have something at stake in the strategies of this particular brand of discrimination. Rather than expanding democracy to reflect all people, it is being narrowed, and marriage gains are no replacement for our freedom.

Recognize Our Strengths and Move Together

Opponents of the bills from within the LGBTQ community and those in solidarity have been strong and should be recognized for their tenacity. In Georgia, community organizations, progressive coalitions and fierce, openly gay State Rep. Simone Bell and others have fought down the bill (twice now), despite the trickery underneath the gold dome, sneaking the bill into unrelated legislation.

Movements are rising, and the call to LGBTQ movements is not to protect our minor legal wins nor even to spread marriage to every state. I believe the call is to align with movements that are rising to confront hostility and violence. The organizing challenge is to connect the case-by-case strategies and state-by-state policy battles to broader front-line efforts. Creative victories will emerge from movements that build alliances to defeat the upsurge in social control and segregation practices. Let’s build at the base and grow the cross-community alliances that can exercise a collective power toward our vision of a true democracy.

I have to admit that I got pretty excited when the call to abolish marriage altogether came out of Alabama. Maybe if we took Justice Glenn Murdock up on the offer, we could separate commitment to love and family from the economic and legal protections that we all need and deserve. Maybe we could fight more collectively in the bigger fights for system transformation. Maybe we could have our cake and eat it, too.

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