Remember the end of the first Star Wars movie, where the Rebels blow up the Death Star, celebrate like crazy, and hand out medals like they just won the war? Then in the next movie, the good guys spend the entire film getting an ass-whooping from one end of the galaxy to the other?
I can't think of a better metaphor for what's happening in the political arena for LGBT people.
The battle for marriage equality is winding down. When we put the torpedo down the thermal exhaust port of DOMA, it set off a chain reaction that is finishing off bans on same sex marriage across the nation. Utah. Oklahoma. Kentucky. Ohio. Virginia. Nevada's is about to go. That's just in the last 45 days, and it appears to be speeding up.
Meanwhile, there's pending litigation in 15 more states. According to Freedom to Marry, that means there are only 8 states (with only 47 electoral votes) with no marriage equality and there are no active court cases.
The writing is on the wall: we're going to get a 50-state solution in the next few years as long as we keep pressing it in court.
We won. War's over, right?
Not by a long shot. This is where we start getting our asses handed to us.
Religious Freedom or Special Rights?
A few years ago, Tennessee passed a law that basically nullified all county and city ordinances that protect people based on sexual orientation and gender identity. So far, that law has avoided being struck down as a violation of Romer v. Evans because it doesn't specifically say sexual orientation and gender identity can't be protected, just that the local ordinances cannot protect more groups than are protected by the state of Tennessee (and by extension, Title VII of the 1964 Civil Rights Act).
Now Tennessee thought about adding a law protecting anyone who discriminates against people in a same-sex relationship based on "sincerely held religious beliefs". Arizona, Idaho, Kansas, and South Dakota have introduced similar measures. Republicans in the U.S. House and Senate have introduced similar "license to discriminate" bills.
Currently, only the Arizona bill looks as though it has a chance of passing. Tennessee realized that their existing "license to discriminate" law was sufficient, and South Dakota figured out that it was already perfectly legal to discriminate there anyway.
Kansas lawmakers had a sudden change of heart when they were pilloried for being the new Bull Connors, and Idaho took enough heat to back down. However, many lawmakers left open the possibility of resurrecting these bills if they were tweaked. We haven't seen the last of these kinds of bills, especially after a 50-state marriage solution happens.
Hobby Lobby v. Sebelius: The Religious Right's New Death Star
These laws aren't the real threat, however. The religious right has been quietly constructing a new Death Star, and it comes in the form of Hobby Lobby v. Sebelius, a case which the Supreme Court has decided to hear.
This case relies in great part on Citizens United -- a case which gave corporations personhood for purposes of freedom of speech -- to make the argument that corporations are persons for the purposes of freedom of religion. While the Hobby Lobby case applies to a corporation having the right to refuse birth control coverage to employees for religious reasons, a ruling favorable to Hobby Lobby can easily be extended to discrimination against LGBT employees.
This would essentially nullify employment protections for LGBT people in every city, county, and state that has them currently. It could make passage of ENDA something of a moot point.
It would allow employers to refuse partner benefits in states with marriage equality. It would negate all the rulings favorable to the transgender community that equate discrimination against transgender employees with sex discrimination under Title VII.
A ruling favorable to Hobby Lobby has the potential to destroy every employment protection passed since the beginning of the beginning of the civil rights movement, and render moot any that might pass in the future. It would likely neuter every state and local non-discrimination ordinance protecting LGBT people.
Conservatives have been telegraphing this was their plan for several years. Somehow, the LGBT movement is just now figuring out that they're building another Death Star. Just like the movie, this second one doesn't seem to have a legal equivalent of a thermal exhaust port.
So let's welcome America's theocratic future, where "freedom of religion" is simply an excuse for corporations to abuse employees, and for individuals to be awful. Maybe, as a movement, it is time to go ahead and speak that truth.