Earlier in the chapter, it was said that laws represent “the collective wisdom of the community as how to best promote peaceful and fair interaction among people.” This philosophy assumes that there is a share set of community values. What happens when there is a cultural divide within a community? One case where the remaking of the culture of a community has resulted in sharp conflict over community values is illustrated in Southern states conflict over the split on Lesbian, Gay, Bisexual, and Transgendered (LGBT) anti-discrimination legislation. Southern state legislatures have traditionally been Republican controlled and represent “the cultural conservatism of older suburbs and older rural areas.” This is in contrast with Democratic municipal governments that reflect an “urbane liberalism.”29 This divide is at its widest over anti-discrimination laws related to LGBT rights. Several southern city councils have broken with their state’s conservative past and have introduced legislation that would significantly expand the groups of persons protected from discrimination. The legislation would extend anti-discrimination to groups not previously included as a protected group such as the elderly and veterans. The most controversial aspect of the anti-discrimination legislation is that it would include LGBT persons as a protected group. To counter what conservative state legislators call the “gay agenda,” several states, including Arkansas, Mississippi, and North Carolina, have passed statewide legislation that would prohibit municipalities from passing anti-discrimination legislation that included LGBT persons as a protected class of persons.30 For example, the Mississippi state legislation “allows churches, religious charities, and privately held businesses to decline services to people if doing so would violate their religious beliefs on marriage and gender.” Under this legislation, persons or businesses that have religious beliefs opposed to homosexuality would not be required by the government to provide services to LGBT persons. That is to say, a person whose religious beliefs condemn homosexuality as a “sin” would not be required to provide business services such as wedding cakes or photography for gay couples. The limits of the legislation are not clear. So, it is unknown, for example, if a hotel could refuse to rent a room to a gay couple, if a gay person could be denied a state driver’s license, if a Christian school could refuse admission to a gay or transgendered student, and a great number of other possible circumstances in which LGBT persons could be discriminated against. One hot button issue in the LGBT anti-discrimination legislation was a clause would have allowed a person to use the public bathroom, public school bathrooms, and locker rooms based upon their gender identity rather than the gender of their birth certification or biological gender. Those opposed to the LGBT anti-discrimination campaigned against it with the slogan, “No Men in Women’s Bathrooms.” They argued that opposition to the bill was about “protecting women and girls from sexual predators.” They argue that such legislation would allow men dressed as women to enter bathrooms and commit assaults.31 Furthermore, those opposed to LGBT anti-discrimination legislation argue that there is no such protection for LGBT persons in federal discrimination legislation. The reaction to the state legislation removing anti-discrimination protections for LGBT persons has been swift, nationwide, and fierce. For example, in response to North Carolina’s state legislation passed in 2016, immediately over 100 major CEOs announced plans to curtail development plans in the state, even to relocate existing factories and offices to another state.32 Celebrities such as Bruce Springsteen cancelled concerts, states and businesses cancelled conferences, vendors dropped out of trade shows, and several state governors banned nonessential state travel to North Carolina. Several federal agencies indicated that they will investigate whether North Carolina’s LGBT legislation puts the state at risk for loss of federal funds such as Department of Education, Housing, Department of transportation, and Urban Development funding and grants.33 In addition to corporate and government reaction, citizens both within the various states passing such legislation and from other states have protested the bias against LGBT anti-discrimination rights. It is estimated that the backlash to the exclusion of LGBT persons from anti-discrimination legislation will cost the states hundreds of millions of dollars.34
State legislation excluding LGBT persons as a class of persons protected against discrimination raises several interesting questions. Among them are the following:
1. If there is no federal discrimination protection for LGBT persons, why is there such a public outcry over the lack of state laws?
2. When two groups have opposing value systems, such as the LGBT community and the conservative religious community, how should the rights of each community be protected and recognized in law?
3. When states or cities pass laws that are unpopular with large sections of the community, what are the rights of those who oppose the laws and how can they get such laws repealed?
4. The conflict over LGBT person rights raised a fundamental question regarding the law. Are laws for the protection of the greater community or for the protection of values held by those who have political power? Explain