ANN ARBOR, Mich. — Last week, in anticipation of the U.S. Supreme Court being on the verge of legalizing same-sex marriage in all 50 states, Michigan state Rep. Todd Courser filed a set of bills that would end the practice of having public employees such as clerks and judges officiate any weddings at all. Instead, couples would need to see a religious figure or file an affidavit declaring their marriage with the state.
The move by Courser, a Republican from a rural region east of Flint, comes a few weeks after the Michigan Legislature passed and Republican Gov. Rick Snyder signed a law that allows any faith-based adoption agency to refuse to place children with same-sex couples if doing so violates the agency’s religious beliefs.
That such measures have popped up with increasing frequency in statehouses across the nation in recent months is no coincidence. Proponents of traditional marriage say they are mounting a concerted, loosely orchestrated effort to counter potential intrusions on what they see as religious liberties that could occur if the Supreme Court finds LGBT Americans have a constitutional right to be married.
Most people on both sides of the argument expect the court to do so within the next week, and such a decision would be a remarkable high-water mark for an increasingly successful gay rights movement. Even as national polls show surging support for marriage equality among the public, religious conservatives struggle to grapple with a cultural shift that they view as immoral, revolutionary and unnatural.
“We’re looking to reduce the areas where our religious freedoms are being destroyed,” said Courser, who began drafting his bills in February because he and others began worrying about the impact of a pro-gay-marriage Supreme Court outcome. “I could see this issue coming and decided we’d better get in front of it and open some dialogue with the public to understand what this looks like. You can’t deal with all of the marriage issues in one batch of legislation, but I wanted to focus on the first step so we’re prepared if this happens.”
Michigan is one of 13 states that do not sanction same-sex marriages and is one of four Midwest states that produced a quartet of cases the Supreme Court is weighing. The justices heard arguments on those cases in April and are expected to issue a decision before their term ends this Monday.
Courser’s moves reflect a national effort that has kicked into high gear with mixed success in recent months. Most notably was the controversy in March and April in Indiana after Republican Gov. Mike Pence signed the Religious Freedom and Restoration Act, or RFRA, as a pre-emptive effort to allow business owners who wish not to provide services that conflict with their beliefs to abstain. That measure sparked such widespread outrage, including threats by major companies to pull their businesses out of the state, that the Legislature passed a “fix” that softened the law.
Yet even with all that, other states have considered or enacted bills that legislators openly admit are preemptive. Louisiana Gov. Bobby Jindal, a Republican expected to enter the crowded field for the GOP nomination for president this summer, signed an executive order in May that permits companies to avoid doing business with same-sex couples. Even though gays can’t legally marry in Louisiana, Jindal said in a statement after signing the order that “the state should not be able to take adverse action against a person for their belief in traditional marriage.”
In North Carolina earlier this month, the Legislature overrode a veto by Republican Gov. Pat McCrory on a bill that allows magistrates — the only public officials in the state who can officiate marriages — to opt out of presiding over same-sex weddings. In Arkansas and Tennessee, the legislatures approved bills that bar local governmental entities from enforcing anti-discrimination statutes aimed at protecting people based on sexual orientation or gender identity. In Oklahoma and Alabama, lawmakers have discussed the prospect of halting the issuance of all marriage licenses rather than having to permit gay couples to have them.
More such efforts are coming, promised John Eastman, the chairman of the National Organization for Marriage and director of the Center for Constitutional Jurisprudence at Chapman University in Orange, California. Eastman said leaders of groups that oppose same-sex marriage have held regular conference calls to discuss what sort of legislation could protect both government officials and private-sector people who believe gay relationships are immoral.
“I’m still cautiously optimistic that the Supreme Court’s not going to do this bone-headed thing, but if they do we need to be prepared,” Eastman said. “We have a pretty big network of state solicitors general and state attorney generals I’m pretty close to and am talking to regularly.”
Yet even Eastman conceded that some of these measures could be struck down by courts depending on how the Supreme Court’s pro-gay ruling is framed. If the justices, as expected, find that the 14th Amendment prohibits discrimination against LGBT people, for instance, that could be used to invalidate the new Michigan law that lets adoption agencies reject same-sex couples on the basis of their sexual orientation.
“The most extreme of these bills are blatantly and obviously unconstitutional,” said Chris Stoll, senior staff attorney for the National Center for Lesbian Rights, a San Francisco-based non-profit that is co-counsel in the marriage equality case out of Tennessee that is among those the Supreme Court is considering. “These bills are being proposed in advance of the Supreme Court decision and in anticipation. I don't see any way the Supreme Court could rule that would put those bills on any more solid ground that they are now.”
To Stoll, the story isn’t so much about the fact that there’s a backlash but that it hasn’t been more successful. Bills similar to the Michigan adoption law were not enacted in Florida and Alabama, ones akin to the Indiana measure were withdrawn in Maine, Nevada and Georgia this spring, and in Texas a measure to ignore a potential pro-gay-marriage Supreme Court ruling flopped last month.
“We’ve seen literally dozens of bills trying to target same-sex couples and almost all of them have failed,” he said. “Our biggest fear is that far-right politicians will be able to sneak them through in some states even though they don’t have the support of the public.”
Many view this burst of legislative action as a predictable — and likely short-lived — reaction that will dissipate over time. Equality NC executive director Chris Sgro noted there were similar efforts after the Supreme Court struck down laws barring interracial marriage in 1967, and that within a couple of decades “nobody could still stand up in real politics and say they’re against interracial marriage.”
Such a settling won’t take nearly that long in this case, University of Michigan constitutional law professor Richard Primus predicted. “Whenever there’s a big change, people who are unhappy with the change think of clever strategies to deal with that change,” Primus said. “In all likelihood, within a few years, most of these attempts will melt away.”
Eastman and Courser disagreed. Both dismissed as fraudulent the many polls that show increasing support for same-sex marriage, insisting that media outlets skew the results because they oppose their traditional values. The most recent, a CBS News-New York Times Poll published Tuesday, found 54 percent of Americans supportive of marriage equality, although it also showed 55 percent of Republicans are opposed.
Eastman said more Americans will become alarmed if religious universities are required to provide family housing for married same-sex couples and charities that refuse to admit gay members lose their tax-exempt statuses. Courser, too, doubted a pro-gay rights ruling by the Supreme Court will end the debate, noting that Americans remain torn over the abortion issue more than 40 years after the Supreme Court legalized it in Roe v Wade.
“Public opinion will turn when people see [judges and business owners] being forced to take part in same-sex marriages thanks to the Supreme Court,” said Courser, who added that he’ll introduce a Pastor Protection Act this summer to prevent clergy from being required to officiate at same-sex ceremonies. The GOP leadership in the Michigan House has said they may not act on some of Courser’s proposals, but he’s not convinced. “When their voters come clamoring to have this situation addressed, they’ll address it. You can bet the Legislature will, all of a sudden, no pun intended, get religion and address it.”