Alarmed by the broad expansion of same-sex marriage set in motion by the U.S. Supreme Court, religious conservatives are moving their fight to state legislatures — seeking exemptions that would allow some groups, companies and people with religious objections to refuse benefits or service for gay spouses.
But winning sweeping carve-outs for faith-affiliated adoption agencies or individual wedding vendors will be an uphill battle. Public attitudes against exceptions have hardened, and efforts by faith groups in states where courts, not lawmakers, recognized same-sex unions have had little success.
“When the judiciary does it they don’t do the kind of balancing that legislatures tend to do,” said Tim Schultz, president of the 1st Amendment Partnership, which has organized legislative caucuses focused on religious liberty in 20 states.
Every state legislative debate over gay marriage has addressed the question of whether religious objectors could be exempt in any way from recognizing same-sex unions. But in states where same-sex marriage became law through the courts, only one, Connecticut, followed up by enacting significant new exemptions. Massachusetts, Iowa and New Jersey have provided no opt-outs for gay marriage opponents.
Until recently, gay rights groups accepted some exceptions to pick up badly needed votes from conservative lawmakers. But that political pressure has dropped as acceptance of same-sex unions has grown. Gay advocates say broad carve-outs perpetuate the very discrimination they had been working to end.
That argument gained currency after the Hobby Lobby ruling last June. The high court decided the arts-and-crafts chain and other closely held private businesses with religious objections could opt out of providing employees the free contraceptive coverage required by the Affordable Care Act. While conservatives rejoiced, liberal groups were outraged, and many vowed to aggressively oppose exceptions for faith groups. Soon after, prominent gay rights and civil rights groups withdrew their support from the federal Employment Non-Discrimination Act, or ENDA, because of the wide reach of its exemption.