Nevermind the Wedding Cakes: ‘Religious Liberty’ Fight Is About Doctors, Wife-Abusers, and Corporations

Now that the firestorm regarding Indiana’s “Religious Freedom” law has died down, attention is shifting to the next battleground state: Louisiana, where the “Marriage and Conscience Act” is supported by Governor Bobby Jindal, but opposed by leading pro-business Republicans in the state legislature.

This dynamic is familiar by now. It began in Arizona, continued in Georgia and Texas, and reached fever pitch in Indiana. But it is still quite new, and activists on both sides of the issue are trying to come to terms with it even now. There are two key points to bear in mind: First, the backlash to the backlash is now in full effect, and second, these “religious freedom” laws are actually much worse than anyone is saying.

So far, we’ve all been arguing about the very best cases for Christian conservatives: small, expressive businesses, like the photographers, bakers, and florists you’ve heard about. By now, most of us know the fundamental question they put forward: Should such businesses be able to opt out of same-sex weddings for religious reasons?

Those who answer “Yes” say so because the government (via anti-discrimination law) seems to be coercing an individual to participate in something her religion forbids. Those who answer “No” say so because turning gays away looks like discrimination, even if it does have a religious reason.

These are relatively close cases, and yet amazingly, “religious freedom” laws have lost even on their terms. As someone who has worked on these issues for several years, I am surprised at how quickly the dynamic has changed. The anti-gay backlash now has its own backlash.

But let’s remember that the real impact of these laws is not about this or that photographer. Yes, she is discriminating. Yes, she is depriving LGBT people of certain services and sending a message that they aren’t equal citizens under the law. But these guys are small potatoes.

The real stakes are far higher. Specifically:

• Corporations. We are living in a post-Hobby Lobby world. We should not be worried about an individual florist. We should be worried about corporations like Hobby Lobby (annual revenue, $3.3 billion) which can not only “turn the gays away” from their stores but deny their employees (and their spouses) insurance benefits, fire women and LGBT people because of their gender or sexuality, and punish an employee’s ‘disobedience’ of any religious precept by dismissing them. In addition, because of Hobby Lobby, anything that baker can do, the bakery chain can do. In states with RFRAs, Chick-Fil-A can, literally, place “No Gays Allowed” signs on their doors, just as that Indiana pizzeria did. That may seem unlikely, but consider more insidious practices, like keeping same-sex families out of condo developments, banks refusing to hire LGBT employees. This is the point: not just to exempt individual believers, but to maintain the separate and unequal status of LGBT people.

• Abuse. Already, RFRA has been used by a Catholic diocese to weasel out of paying a settlement for sexual abuse cases. (They lost, but other claims would win.) Spousal or child abusers could absolutely use RFRA to defend against criminal charges, if they can show that their “discipline” was sincerely motivated by a religious reason—which is easy to do, given the scriptural support for it. (For example, in the Alabama case of a child who was “run to death,” forced running in circles is a punishment often meted out by religious conservatives.) RFRA has even been used by a fundamentalist Mormon to evade child labor laws.

• Medical Care. Last fall, a physician refused to treat a child because her parents were two women. That’s the tip of the iceberg. Under religious exemptions present in most states, any religiously-affiliated hospital—20% of hospitals nationwide—could turn away gay people and their families, even in emergencies. Likewise, while RFRA’s backers focus on a lone pharmacist who doesn’t want to dispense contraceptive pills, Hobby Lobby means that entire pharmaceutical chains wouldn’t have to do so. Thanks to RFRA, social conservatives can make contraception as hard to obtain as abortion—as they are rapidly trying to do.

Some of these consequences are intended, others are unintended. But the problem with focusing on bakers or photographers is, as one leading RFRA opponent, Cardozo Professor Marci Hamilton, puts it, “a RFRA is to each of these issues as a sledgehammer is to a flyswatter.”

Sure, anti-discrimination law is important. But as Hamilton also points out, truly fixing “religious freedom” laws, based on actual cases alone, “would entail exempting the following categories: entertainment venues and amusement parks, illegal drugs, child support, child labor laws, fraud, immigration, and criminal investigation.”

Finally, by setting up a legal regime in which LGBT people are not equal, and women do not have full control over their bodies, “religious freedom” laws turn back the clock to a time when women’s and LGBT people’s rights were subordinated to the religious dictates of conservatives. That subordination is not just symbolic; it has tangible legal effects.

Don’t be taken in by the homophobic pizza joint and anti-gay florist—even if you oppose them. The real action is elsewhere, and the real stakes are far higher.