Bathrooms and the Bible: The Latest Front in States' Culture Wars

Debates over LGBT rights have helped define differences between red and blue states.
by | April 13, 2016
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Legislation aimed at LGBT individuals has intensified differences between red and blue states. Shutterstock

Like practically everything else in American political life, the culture wars have become part of the standoff between red states and blue states.

Not that long ago, the major differences between states consisted of tax rates and levels of government service. Now, states controlled by Democrats and Republicans take entirely different approaches when it comes to gun control, the death penalty, marijuana legalization, access to abortion and rights for lesbian, gay, bisexual and transgender (LGBT) individuals.
 
San Francisco Mayor Ed Lee and New York Gov. Andrew Cuomo, both Democrats, made this split explicit last month by barring non-essential travel by government employees to North Carolina, in protest over the state's new law blocking anti-discrimination protections for LGBT individuals. Others have followed.
 
Mississippi enacted a law last week to protect the religious liberty of individuals that don't want to provide services for same-sex weddings. Conversely, Pennsylvania Gov. Tom Wolf and New York City Mayor Bill de Blasio, both Democrats, have recently signed executive orders expanding rights for transgender individuals.
 
"It's one of the strengths of federalism," says Ryan T. Anderson, who researches marriage and religious liberty at the conservative Heritage Foundation. "I think we're going to see this contested for the foreseeable future, especially on the question of abortion and the question of religious freedom."
 
GOP-dominated states have enacted dozens of abortion restrictions since the huge wave of Republican victories in 2010. The Supreme Court appears likely to uphold, on a 4-4 split, a Texas law that imposes restrictions on abortion clinics that will force many to close. Such an outcome might encourage more red states to follow a similar model.
 
Lately, legislators in red states have been considering legislation that would further sanctify the Bible. Last month, the Kentucky Senate unanimously passed a bill to allow use of the Bible in school plays, in response to an incident in which a school had deleted a biblical passage from "A Charlie Brown Christmas." A Tennessee bill that would name the Bible as the official state book is sitting on the desk of GOP Gov. Bill Haslam, who has concerns about its constitutionality.
 
But LGBT rights have become the major battleground in the culture wars. Rights for gay people and now transgender individuals have been advancing rapidly, but this has triggered a backlash. Not everyone accepts that marriage should be defined as anything other than the union of a man and a woman, despite the Supreme Court verdict. Mat Staver, a former law school dean at Liberty University, has said that same-sex marriage represents "the beginning of the end of Western civilization."
 
"When you elevate it to that level, you have to find a way to fight back," said Barry Lynn, executive director of Americans United for Separation of Church and State. "The way they've chosen, in general, is these religious freedom bills."
 
These proposals have not been a slam dunk, as the controversy surrounding the North Carolina law has shown. On Tuesday, GOP Gov. Pat McCrory signed an executive order to soften the anti-LGBT bill, but critics said it was barely an improvement. Last year, Indiana and Arkansas faced controversies and threats of business boycotts over similar legislation. 
 
"Bruce Springsteen gets to not lend his artistic talent to something he thinks is wrong," Anderson said, referring to the rock legend's decision to cancel a concert in North Carolina last weekend. "But I see this as hypocritical, because he wants to block a law that protects the baker or photographer from being able not to lend his talent to something he thinks is wrong."
 
Opponents of religious liberty laws maintain that they are tantamount to permission to discriminate. Jason Holsman, a Democrat who helped lead a 36-hour filibuster that tried to stop a religious freedom bill from advancing in the Missouri Senate, noted during debate that he has many LGBT constituents. "I look at this bill and I read it through their eyes," he said. "And when I read it through their eyes, I see a mean-spirited attempt to try and make the laws apply differently to me than they [do] for you."
 
Advocates for transgender individuals have argued that they are the ones at risk from potential harm when using bathrooms that are not appropriate to them. They say that in cities where transgender individuals can use the bathrooms they feel are appropriate, a few of them have been assaulted, but there is no evidence of transgender individuals ever assaulting other people.
 
But many people remain uncomfortable with the idea that a person who is anatomically a male has become a woman and wants to use facilities for women. That was demonstrated last fall by Houston voters rejecting a broad anti-discrimination ordinance, following a campaign that mainly turned on the question of transgender bathroom use. Democrats and the "liberal media... will never stop trashing North Carolina until they achieve their goal of allowing any man into any women's bathroom or locker room at any time, simply by claiming to feel like a woman," North Carolina Senate President Pro Tempore Phil Berger said in a statement, in response to McCrory's executive order.
 
Meanwhile, in Massachusetts, GOP Gov. Charlie Baker is trying to decide whether to support an expansion of the state's anti-discrimination protections for transgender individuals to include public accommodations, including bathrooms. In Minnesota, a bill to block transgender individuals from using the restrooms of their choice received a hearing from a House committee on Tuesday, but it's not expected to pass that GOP-controlled chamber. It has no chance in the Democratic-controlled Senate.
 
States are even taking different approaches to something as intimate as therapeutic treatment. Last year, Oregon and Illinois became the third and fourth states to ban so-called gay conversion therapy, blocking mental health professionals from performing treatments that seek to change the sexual orientation or gender identity of clients. 
 
Conversely, the Tennessee Senate on Monday cleared a bill for Haslam's signature that would allow therapists to turn away LGBT clients if treating them would violate their "sincerely held principles." If Haslam signs the bill, it would be the first such state law in the country. The bill violates American Counseling Association guidelines.
 
Governors tend to be more wary of divisive social issues than legislators. Last month, Georgia Republican Gov. Nathan Deal vetoed a religious freedom bill, which major businesses warned would allow discrimination against LGBT individuals. South Dakota GOP Gov. Dennis Daugaard also vetoed a bill last month that would have required transgender students to use bathrooms and locker rooms designated for the gender they were assigned at birth. Last week, Idaho Republican Gov. Butch Otter vetoed a bill that would have allowed the Bible to be used for instruction in public schools, calling it unconstitutional.
 
But even if Tennessee Gov. Haslam vetoes the bills regarding counseling and the Bible, he might sign a bill currently being considered that would bar transgender individuals from using the restrooms of their choice, predicts Lynn, the Americans United executive director. "If I had to bet, that might be the one he would actually sign," Lynn said.