The Texas-Sized Anti-Gay Backlash

By now, anyone who follows the news knows what the anti-LGBT backlash looks like. There are four recurring legislative actions: “Religious Freedom Restoration Acts” (RFRAs), or “Turn the Gays Away” bills. The most recent one got passed in Indiana last week to much uproar. Then there are various ways to opt out of recognizing legal same-sex marriages. And don’t forget “Bathroom Bills” that prevent transgender people from using the appropriately-gendered bathroom, or the state laws prohibiting cities from protecting LGBTs.

Or, if you’re in Texas, all of the above. And then some.

As reported by the Texas Observer, lawmakers in the state that gave us Rick Perry and George W. Bush have proposed over 20 anti-LGBT laws this legislative session.

Also reflecting national trends, the batch of hate bills ranges from the familiar to the bizarre.

In the former category are all four of the usual proposals: an enhanced RFRA (Texas has had a regular RFRA since 1999), Bathroom Bill, Marriage Refusal, and Trans Bans. This is not a coincidence, since, notwithstanding the “states rights” rhetoric, these laws are usually written by national conservative organizations like Alliance Defending Freedom, whose previous credits include California’s Proposition 8 and the Defense of Marriage Act (DOMA). It’s a nice irony: Beltway wonks writing “states rights” laws.

But this is Texas, after all, and so everything is bigger—including the unintended consequences of the backlash.

First, two of the 20 anti-gay proposals are constitutional amendments that would basically put Texas’s RFRA on steroids. Most RFRAs have the same formula: Government may not “substantially burden” religious exercise without a compelling state interest. But Texas SJR 10 and HJR 55 would remove “substantially.”

Unlike a lot of legalese, that word can move mountains. If any burden on free exercise, no matter how slight, is forbidden, then it’s easy for any litigant to claim a de minimis burden and prevail in court. As someone who keeps kosher, for example, it definitely burdens my exercise of religion not to have kosher food at the Alamo. Not a substantial burden, but a burden nonetheless. Bring on the Hebrew National!

Or, to take an example from the RFRA fight in Georgia, suppose my reading of the New Testament tells me I should be able to beat my spouse and child. If all I need to show is any burden, should surely get an accommodation from Texas.

Do I even need to mention Sharia Law here? Another delicious irony: Texas’s conservatives hate gays so much, they’re willing to help Muslim fundamentalists.

Then there are the three “Bathroom Bills” circling the Texas legislative drain. Why three? Well, it’s Texas.

The winner of Texas’s All-You-Can-Hate contest, however, is Representative Cecil Bell , who is the sponsor of four separate bills (and a ringer for Yosemite Sam).

Bell’s bills are all pretty bad, but the “Preservation of Sovereignty and Marriage Act” (POSAMA, of course) is the kicker. Remember the Republican-conceived ban on the District of Columbia holding a referendum on medical marijuana? They knew they would lose, so they forbid D.C. from spending even a penny to count the votes. Bell’s bill is similar. It would prohibit the use of taxpayer funds to license a same-sex marriage.

So, you know, you may have a constitutional right to get married—but, alas, we don’t have the money to register it.

This last week, however, the Texas House Committee on State Affairs spent who knows how many taxpayer dollars on two hours’ worth of testimony on “biblical” marriage (polygamy—though I doubt that was mentioned), federalism, and so on.

Interestingly, POSAMA may end up losing because of another of its provisions: shifting the authority of marriage licenses from county clerks (who are locally based and may vary in their practices) to the secretary of state. County governments are outraged, since they depend on the revenue from marriage licenses.

Ironically, the confederate-rhetoric-spewing Cecil Bell ends up being a partisan for centralized government over local control—and has made unexpected enemies as a result.

Now, I’ve made plenty of Texas jokes so far, but the truth is, this isn’t your grandpa’s Lonestar State anymore. Contrary to stereotype (and Rick Perry), these bills may all die, for several reasons.

First is the most interesting trend to emerge in the culture war this year: the pitting of Republican versus Republican, or Big Business versus the Christian Right. In Texas, the Texas Association of Business—the state’s Chamber of Commerce—has opposed the RFRA-boosting amendments, its president stating that “This will certainly make our state look very much unwelcoming when it comes to business recruitment.”

As one would expect, the TAB didn’t make moral arguments; it made economic ones. Toyota is moving its U.S. headquarters to Plano, and as part of its corporate policy, worked to pass an anti-discrimination law. One former TAB chair (a Republican) said the laws would put the 2017 Super Bowl—set for Houston—at risk.

This is a new reality. And while business opposition wasn’t enough to stop Indiana’s RFRA from passing last week, Texas is not Indiana. The TAB is enormously influential, and Texas boasts of being pro-business—which is hard to do when you’re opposing your chamber of commerce.

More broadly, this is just bad PR. Texas has changed, and articles like this one undo a lot of the progress the state has made to shed its backward image. Sure, Texans are still cowboys—but they don’t want to be seen as hicks.

In fact, Texas is a lot more diverse than stereotypes may suggest, and its business-first conservatism is often more Rand Paul than Rick Perry. Many Texas Republicans may not be pro-gay, but being anti-gay isn’t really at the top of their agendas. In fact, one lesbian state legislator (from Austin, natch) has said that it might be best to just run out the clock on the legislative session, while lawmakers focus on other issues.

Reading between the lines, that sounds a lot like a Republican privately saying, “I can’t oppose this bill, but I won’t support it either.”

Still, old habits die hard, and in a state as large as Texas, there’s a lot of ideological ground to cover between Austin and Representative Bell’s hometown of Magnolia (now an exurb of Houston).

There’s also a tremendous amount of rhetorical misinformation out there. Anti-trans “Bathroom Bills” don’t solve any problems: There are no reported cases of transgender women (“biological men” in the bill’s sponsor’s words) exploiting their gender identity to assault women in locker rooms. But there are plenty of cases of those same transgender women—often indistinguishable from cisgender women—being brutally assaulted by men. In addition to hate and fear, Bathroom Bills bespeak a great deal of ignorance of who is really in danger.

Nor is it a sin to arrange flowers for a wedding. Nor is a corporation’s owner morally responsible for how an employee uses her health insurance. Nor does it make sense to chant the mantra of “states rights” while trampling on local communities’ authority to pass anti-discrimination laws.

These kinds of rhetorical subterfuge can be very effective. (Just ask Hobby Lobby.) “Religious Freedom” bills don’t succeed when people know what they really are. But like a good Texas German sausage, it’s sometimes hard to know what you’re getting.