The Silver Lining of Targeted Discrimination

After same-sex marriage advocates went 4-for-4 on marriage amendments in the 2012 national election, notorious antigay ad man Frank Schubert predicted a backlash.

"The truth of the matter is that same-sex marriage creates a host of conflicts with people who disagree with it," he told the Atlantic. "You will start to see wedding photographers sued and fined, innkeepers put out of business, churches sued, small businesses sued. Then people will say, 'Whoa, I didn't think this was going to happen.'"

To LGBT activists it may have sounded like disgruntled hysterics. But Schubert was also setting in motion the idea that equalizing marital rights would so dramatically shift the landscape that, suddenly, people of certain religious beliefs would become victims in need of protection.

As one might expect of Schubert, that's just new spin on the same old story, says Lambda Legal attorney Jenny Pizer.

"The rhetoric now about a religious need about marriage is a recasting of what antigay folks have been saying for a long time," she notes. In fact, those religious elements have been discriminating all along against people based on sexual orientation and gender identity. Often they simply got away with it, because LGBT individuals have no legal recourse in most areas of the country.

Arizona is the perfect case in point. Over the last four years, Lambda Legal has received nearly 500 calls from LGBT Arizonans concerning discrimination ranging from harassment and violence to family law and workplace issues. But these complaints have nothing to do with marriage equality, since the state doesn't recognize same-sex unions.

Nonetheless, Arizona lawmakers were determined to enable discrimination against LGBT individuals, rushing to pass a bill early this year that would allow individuals, organizations, and businesses to deny services to absolutely anyone based on one's religious beliefs.

But once it reached her desk, Arizona Gov. Jan Brewer was hard-pressed to find any immediate need for the highly controversial "religious freedom" legislation, Senate Bill 1062.

"I have not heard of one example in Arizona where a business owner's religious liberty has been violated," Brewer said, explaining her decision to veto the bill at a February 26 press conference that turned the capital into a media circus.

Brewer -- whose legal counsel and policy director reportedly worked with creators of the legislation to make it "more palatable" to the governor -- was in a pickle. After pro-gay rallies at the capitol grabbed national headlines and public outcry ensued, supporters started dropping like flies. Senate Republicans who had voted for SB 1062 one week came out against it the next. National GOP figures like Sen. John McCain urged a veto. And high-profile entities like American Airlines and the National Football League warned against its passage. Ultimately, Brewer killed the bill that had been fostered by her staff.

On one hand, it was a huge success story, a sign that the weight of public opinion has shifted to the side of equality and that religious liberty no longer serves as a blanket justification for discrimination in the minds of most Americans.

On the other, it was a chilling wake-up call, a moment for the movement to stop and realize just how defenseless we are so long as we are not a protected minority in the eyes of the law. While a federal statute likely would have trumped such a state law and prohibited denials of service to people based on their race, religion, national origin, or disability, LGBT individuals are left uniquely vulnerable.

This was a point that Heather Cronk of GetEQUAL had to make repeatedly to mainstream reporters covering the Arizona debate and others like it. Gay and transgender Americans aren't guaranteed fair treatment in housing, employment, or public accommodations. Upon learning of these inequities, many journalists were "dumbfounded," according to Cronk.

To some extent, the movement has been a victim of its own success. The air of inevitability over same-sex marriage has made the fight twice as hard on bills like SB 1062. Erica Keppler of the LGBT activist group Human and Equal Rights Organizers started sounding the alarm bells on SB 1062 at the outset of 2014. But when she tried to line up speakers for the bill's first committee hearing on January 16, she could only rustle up a handful.

It wasn't until the bill passed the state senate on Thursday, February 20, that an emergency meeting drew 50 people, followed by an impromptu protest of about 100 that night. After several consecutive days of rallies, more than 1,000 protesters gathered Monday, February 24, drawing the lion's share of media attention.

Even with the demise of SB 1062, some activists, like Huffington Post editor-at-large Michelangelo Signorile, have rightfully questioned how much, if anything, the movement actually gained. It's still perfectly legal, after all, to discriminate against queer individuals in most instances throughout most of Arizona.

Worse yet, the battle may have only just begun, as similar bills have begun surfacing in other states. Just days before the Klieg lights turned on Arizona, Kansas dodged the spotlight when its Republican-controlled state senate shelved a similar bill targeting LGBT individuals. Meanwhile, Missouri, Oregon, and South Dakota are considering their own religious liberty bills. And Mississippi Gov. Phil Bryant signed a "religious freedom" bill into law in April.

But perhaps there's a silver lining to these attempts to license discrimination against LGBT Americans: There's nothing like publicity to jumpstart pro-equality legislation. People often don't know there's a problem until you demonstrate there's a problem. Lack of visibility is the very reason the movement has had such a difficult time building mainstream momentum for workplace fairness measures -- it's difficult to create a sense of urgency for protections that 90% of Americans believe already exist. By contrast, the repeal of "don't ask, don't tell" was preceded by a decade-long stream of stories about discharged service members who were considered mission critical to the ongoing wars in Iraq and Afghanistan.

If ever there was a time for our big advocacy groups to start a public push for federal legislation that would protect gays against discrimination in housing, employment, public accommodations, credit, and more, now is that time.

No one can put a dollar value on the visibility that discriminatory legislation in Arizona and other states, and the reaction from civil rights groups, is bringing to this issue. And since the antigay groups are sure to press the issue state by state, the LGBT movement should make a national push to define the terms of the debate. If HRC president Chad Griffin can pledge to bring marriage to all 50 states by 2018, why not come up with an equally aggressive plan for full federal protections that would neutralize bills like SB 1062?

Why choose to play defense when we can be on the offensive?