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Gay Rights, the Bible, and Public Accommodations: An Empirical Approach to Religious Exemptions for Holdout States

As seen in California’s Proposition 8, the largest roadblock to progress in gay rights laws often comes in various forms of religion-based opposition. This note argues that due to the religious composition of states that do not have public accommodations laws protecting their citizens from discrimination based on their sexual orientation, broader religious exemptions than those used by states that currently have such laws will likely be the only way to progress. To support its thesis, this note contributes to legal scholarship something unseen to date by empirically analyzing the issue – not using constitutional, philosophical, or religious theories, but actual state statistics to shed light on the question of the necessity of enacting religious exemptions in states that do not currently have such laws. The empirical data analysis shows that states that do not protect their citizens from discrimination based on their sexual orientation are indeed more religious than those that have such laws. Moreover, the data shows these states are home to much larger percentages of certain religious groups that studies show are some of the most opposed to gay rights. Building on these findings, the note proposes a simple exemption scheme that takes into account the unique position of religious business owners while also recognizing the need for a critical mass at which businesses should not be able to discriminate. The note also briefly questions whether this conflict is blown out of proportion by scholars and politicians, and offers anecdotal evidence for why the likelihood of discrimination might be much lower than anyone imagines. Moreover, this note refocuses the gay rights debate on public accommodations laws, something that only 22 states and the District of Colombia have, while most current scholarship skips forward to the discussion of gay marriage.