The Strategy: Legalizing Anti-Gay without Acting Like You Are

There are now over 100 anti-LGBT bills under consideration around the country, according to a recent Huffington Post compilation. They represent a national radical right-wing industry creating laws that give conservative politicians symbolic causes to convince their bases that they’re still leading the fight against the evil of LGBT equality.
    Many of these bills are unnecessary, even repeating what’s already in the law. Mississippi’s recent notorious contribution adds nothing to its already existing law.
    But their purpose isn’t legal or rational; it’s political. Constantly championing new “God, Guns, and Gays” measures is the way to maintain elected office by demonstrating to politicians’ right-wing and Evangelical bases that they’re Davids fighting heroically against the big bad Supreme Court Goliath.
    While younger generations find little interest in this fight, older right-wingers are most likely to vote and engage in political activities. And portraying right-wing Christians as victims of secularist culture still works to rally church-going masses, scaring them to vote even against their economic self-interests.
    Not only Obergefell v. Hodges (2015) that guaranteed marriage equality, but Romer v. Evans (1996) that threw out Colorado’s anti gay bill, and Lawrence v. Texas (2003) that decriminalized homosexual sexual acts, made it clear that the Supreme Court would not allow LGBT people as a category to be singled out for discrimination. So, the religious right-wing legal think-tanks devised laws that would chip away at LGBT rights without designating any specific group for discrimination.
    As observed for months now, right-wing leaders are modeling their new approach on their anti-Roe v. Wade strategy. Strategist Frank Shubert recommended to the Values Voters Summit in January, that to seek incremental wins the right-wing should develop a “gay” version of “partial birth abortion.”
    These new-style laws, they hoped, would wind their way to a Supreme Court that would uphold them based upon the new positive intentions they claimed to be defending while not singling out LGBT people as a class even though the clearest collateral damage would be LGBT discrimination. And the Supreme Court looked as if it could uphold these laws - until the death of Justice Scalia in February.
    Broadly, then, watch for three dominant legislative strategies to replace the outright admission of discrimination against a class of people. The first is state government nullification of local protections for LGBT people by requiring local jurisdictions to conform to state statutes that lack LGBT inclusion in their nondiscrimination protections.
    The major thrust of North Carolina’s notorious HB2, which was passed quickly in a special session, does this very thing. It doesn’t literally single out LGBT people as a class by name but does not include them in a statewide nondiscrimination ordinance while banning local governments from passing any protections that go beyond the state’s.
    Other states, such as Missouri, have passed local preemption laws that favor business interests’ goals. And, in North Carolina, for good measure, HB2 also preempts local employment ordinances that supersede state law governing wages and other employee benefits, and protections. And Oklahoma has had a similar approach in its SB 1289.
    North Carolina’s bill also includes a second national push, which is being dubbed “bathroom bills.” These play on particularly American fears because Americans (unlike Europeans) have a history of being terrified about who’ll be sharing bathrooms with them.
    Those who remember the fight for the Equal Rights Amendment designed to guarantee equal rights for women that was introduced in Congress in 1923 and finally passed in 1972, remember that the argument against its ratification in the states included the fear that both men and women would have to share the same public bathrooms. Those who also remember the arguments against gay men and lesbians openly serving in the military remember that the fear included so-called brave men and women having to share bathrooms and showers with someone who might look at them.
    Freud would have had a field day with all of this. But now the right-wing is using bathroom anxiety to gin up the fear of the transgender person.
    Knowing that fear of gay men and lesbians isn’t as effective anymore, transgender people are the prescribed strategic targets. They are to be portrayed as potential molesters of – and here’s the trope the right-wing always uses to add further fear – our innocent children.
    Whereas transgender people are more likely to be the victims of violence, in true oppressor-dynamics fashion the popular lie always turns victims into perpetrators and vice versa. In fact, as one article contradicts it: “More GOP Lawmakers Arrested for Sexual Misconduct in Bathrooms than Trans People.”
    The third national right-wing think-tank tactic is to claim that their bills are intended to protect “religious liberty.” Though they’ll continue to attempt passage of such laws at the federal level, the strongest push is planned in the states. Model bills have been distributed, with legislators invited to contact their national think-tanks for sponsorship advice.
    Some of these add nothing to current law. This would include the “pastor protection” acts now in 14 statehouses.
    But the acts with the greatest potential are those that allow business people who have “sincerely held religious beliefs” to discriminate against LGBT people. Because they’re meant to impress the base by making it look as if politicians are fighting back against the Supreme Court’s extension of marriage equality, these laws often center upon providing business for LGBT marriages.
    Of course, “religious liberty” has a long history of use to justify racism. And, of course, legal scholars have pointed out the problems with these laws, often called religious freedom restoration acts.
    Their plan, however, is that these laws will appeal broadly to conservatives and libertarians. Politicians, they believe, will have difficulty coming out against “religious freedom,” and young people will agree that businesses should have the right to choose to “refuse service.”
    So, this is where present battles are. The effective antidote is the response of businesses (who also support the election of these right-wingers) coupled with progressive religious folk standing up forcefully against fear-based, anti-LGBT use of religion. l


Robert N. Minor, Ph.D., Professor Emeritus of Religious Studies at the University of Kansas, is author of When Religion Is an Addiction; Scared Straight; and Gay & Healthy in a Sick Society. Contact him at

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