The culture war in American state legislatures is increasingly pushing into new territory.
Lawmakers have routinely pushed the frontiers of the law to advocate their party's positions. But more are blowing past constitutional concerns to make a bold statement. These laws are unlikely to remain on the books, legal experts say, but many conservative lawmakers see them as a victory – no matter how temporary or how much they cost the state in legal bills.
On Thursday, the Louisiana Senate voted in favor of a bill that would ban abortions performed because the fetus was diagnosed with a genetic abnormality. The move makes Louisiana the latest politically conservative "red" state to pass or consider a law that may be constitutionally questionable in an effort to safeguard values of the right.
The trend has emerged largely as an onslaught of laws that restrict abortion on the basis of medical grounds, or that potentially allow groups and individuals to prevent LGBT persons from accessing certain public services on the basis of religious convictions.
In some cases – such as in Oklahoma and Georgia – governors have struck down such bills over doubts about their constitutionality and intention. Other states – like North Carolina and Mississippi – have followed through, suggesting that hardcore social conservatives see state legislatures as key to stemming what they view as the erosion of traditional values, sociologists and political scientists say.
“I think the right-wing culture warriors fear that the tide is running against them nationally. They don’t think they can entirely rely on the Supreme Court, at least not for long,” writes Todd Gitlin, a sociologist and Columbia University professor who has authored multiple books on American cultural history, in an e-mail.
“They’re often strong in local legislatures and they like to have victories,” he continues. “[T]hey're having enough success in the South and prairie states to encourage them to greater feats of legislation – at least in the short run.”
In the wake of the 2015 Supreme Court decision to legalize same-sex marriage, a flurry of red states rushed to pass laws that they said would protect those whose religious convictions prevented them from participating in the practice.
In 2016 alone, state legislatures nationwide introduced more than 200 bills that advocates regard as anti-LGBT, the Human Rights Campaign reports.
These include a law in Kansas that would allow campus religious groups to confine their membership to students that observe a religion’s tenets; a Tennessee law that would protect mental health workers who turn away patients on the basis of their religious and moral principles; and a sweeping Mississippi religious freedom bill that allows private and public businesses to withhold service from LGBT individuals if doing so contradicted their “sincerely held” religious beliefs.
While LGBT advocates are concerned that those laws are written broadly enough to be applied to deny a range of services, conservative analysts say there is a crucial difference for most conservatives: “They make a distinction between serving someone a pizza and participating in someone’s marriage,” says Joseph Knippenberg, a professor of politics at Oglethorpe University in Atlanta, Ga. “There are very few people who think that they are entitled to refuse service to someone because of his or her sexual orientation.”
Indeed, public opinion – at least when it comes to gender and marriage equality – has swung firmly in favor of LGBT-rights advocates. Sixty percent of Americans now say marriages between same-sex couples should be recognized as valid under the law, according to Gallup – up six percentage points from the month immediately following the high court’s decision.
“There’s no question that the numbers on the traditional marriage side have dwindled and those on pro same-sex marriage side have prospered,” Professor Knippenberg says. “With abortion, it’s much less clear.”
Unlike religious freedom laws, which tend to focus on personal religious and moral beliefs, the abortion restriction laws have taken on a more scientific tone. In red states across the nation, lawmakers have passed bills that adopt medical language – even as many medical ethicists and professionals challenge the claims behind the laws and say the effect is to make the procedure less safe for women.
Conservatives legislators see an opening: The push stems in part from the ambivalence of public opinion around abortion, Knippenberg says. Though 50 percent of Americans say they favor abortion rights, only 30 percent say the practice should be legal under any circumstances, Gallup reports.
Moreover, conservatives have over the decades maintained a steady resistance to the 1973 Supreme Court ruling that recognized the constitutional right to an abortion. Add to that the robust campaign against late-term abortions over the past decade; the 2013 conviction of former abortion provider Kermit Gosnell on charges of first-degree murder; and the recent controversy over the discredited Planned Parenthood videos. The latter resulted in grand jury charges against the covert videos' antiabortion creators. But overall, it adds up to a climate that would embolden antiabortion groups to advocate their cause, Knippenberg says.
“I think there’s a sense that you can chip away at Roe v. Wade right now and attempt to extend these kinds of restrictions on abortion. It’s politically less of a losing proposition” than opposing gay marriage, he says.
The trouble with a purely legislative approach to fighting a culture war is that it’s easy to tread on shaky legal ground.
“They're painting themselves into a corner,” writes Professor Gitlin at Columbia of conservative legislators. “The hard core of them believe in staking out their ground and are largely indifferent to the practical consequences.”
Republicans in some states have tried to prevent a descent into what they consider unconstitutionality. In May, Oklahoma Gov. Mary Fallin vetoed a bill that would make performing an abortion in that state a felony, saying the proposal’s language was “vague, indefinite and vulnerable to subjective interpretation and application.”
And in Louisiana, Republican Sen. Dan Claitor – who often supports abortion restrictions – voted against his fellow lawmakers’ proposal, insisting the bill had no legal ground to stand on.
“Why would you put me in a box to make a choice between supporting my oath to uphold the [C]onstitution ... and being pro-life?” Senator Claitor said to the Associated Press. “The bill as written, in my view, is patently unconstitutional.”
Which is why Knippenberg says that social conservatives – with whom he identifies – have to continue to make the case for themselves on more than just one front. Some are already doing that, he says, opting to homeschool their children or expose them to the kinds of experiences and values that they feel are in line with their own.
But there’s more to be done, he says.
“Where you have to do the persuading is not so much in the political arena but in the education and culture arena,” Knippenberg says. “You have to have people who write the books, teach the children, make the movies who are making a winsome and persuasive case for ‘traditional moral values.’
“Winning a political battle now and not attending to issues of education and culture formation,” he says, “would be a huge mistake.”