2022 State Legislative Sessions: An Overview on Government Nondiscrimination Acts
Even before the U.S. Supreme Court attempted to redefine marriage in Obergefell v. Hodges (2015), legal pressure to affirm same-sex marriage increased, at times placing those who believe in natural marriage in the position of choosing between their livelihoods and their sincerely held religious beliefs or non-religious moral convictions about marriage. Since 2015, that pressure and government coercion to affirm same-sex marriage and radical gender ideology have only grown.
Government Nondiscrimination Acts (GNDAs) are needed at the state level to protect individuals and entities (including religious schools, nonprofits, public and private employees, small business owners, and entities interacting with the government via grants, contracts, or other means) from being penalized for their religious beliefs or moral convictions regarding sexuality and marriage.
The strongest GNDAs contain the following key provisions:
- Prohibit the state and its political subdivisions from taking action against a person or entity for religious belief or moral conviction regarding sexuality and marriage.
- Provide a thorough definition for “discriminatory actions.”
- Provide a careful definition for the religious beliefs and moral convictions that are protected, including:
- That marriage is or should be recognized as the union of one man and one woman,
- That sexual relationships are properly reserved for such marriages, and
- That sex is a biological reality, determinable by the time of birth.
(It’s important to note that protecting these beliefs does not mandate them. The GNDA does not relitigate Obergefell; it deals with the unintended consequences of that ruling.)
- Create a cause of action.
People like Barronelle Stutzman (a florist from Washington state) and Jack Phillips (a baker from Colorado) were initially sued over their personal beliefs about marriage, but the need for GNDAs has only become more urgent due to the mounting pressure to affirm gender identity ideology. One recent example is Nicholas Meriwether, a long-time professor at a state university in Ohio, who received a written warning in 2021 for failing to use a student’s preferred pronouns. The university rejected Meriwether’s attempts at a compromise (such as using the student’s preferred name but refraining from using sex-specific language) and threatened “further corrective actions” if he didn’t give in to the student’s demands. Meriwether sued the university on the grounds that it was compelling him to use certain speech that violated his sincerely held religious beliefs. Fortunately, Meriwether won his case against the university and was able to keep his job without having to endure further threats.
Several other cases are currently pending in state courts. Among these are Telescope Media Group v. Lucero (involving a husband-and-wife filmmaking team in Minnesota), Emilee Carpenter Photography v. James (involving a female photographer in New York), and 303Creative v. Elenis (involving a website designer in Colorado). Each of the small business owners involved in these cases is liable to be fined for failing to comply with laws that would require them to violate their sincerely held beliefs about marriage and sexuality. In addition, the plaintiffs in Minnesota and New York could face jail time. More cases like these examples are sure to follow, which is why states should enact GNDAs to ensure that all their citizens are protected and don’t need to spend time and money on lawsuits to defend their right to follow their consciences.
Since 2014, at least 17 states have considered GNDAs. Three states have considered them this year (including those with bills carried over from last year): Iowa (HF 170), Kentucky (HB 495), and Massachusetts (H 1536). Each of these bills contains all of the key provisions listed above.
Although state introductions of GNDAs skyrocketed after the Obergefell ruling in 2015, more recently, they have been becoming less frequent. The only state with a full GNDA is Mississippi in 2016 (HB 1523). Although the law was challenged, the U.S. Court of Appeals for the Fifth Circuit upheld it twice, allowing it to go into effect. Since then, it has not been successfully challenged in court, signaling that GNDAs are viable religious freedom protections that can be enacted without being inevitably blocked by the courts.
The multi-year court battles over the Mississippi law may have given legislators pause, but now that the state has prevailed, GNDAs need a resurgence. Legal threats against individuals who hold beliefs in natural marriage and biological sex have continued to increase, and state legislative efforts have not sufficiently addressed this problem. More state legislators should consider introducing GNDAs to protect the conscience rights and religious freedom of the citizens in their states, preferably before more jobs and livelihoods are threatened.