It’s been less than a week since the passage of Senate Bill 101, and the outcry hasn’t abated. The local and national reaction has been almost uniformly negative, and talks of boycotting the state seem to be getting bigger by the day.

I said my piece about the law a while ago, and seemingly every argument against it has been put forth in the last week or so. It remains to be seen if the backlash pushes the state legislature to backtrack. But even if it doesn't, with the onslaught of recent legal victories for gay rights, it's fair to wonder whether the law will stick anyway.

To that, some legal precedent:

The face of so-called “Religious Freedom” bills seems to be eateries looking to deny service to homosexuals, which has elicited comparisons to segregated lunch counters from the Civil Rights Era. Well, in the 1964 decision Katzenbach v. McClung, the Supreme Court found 9-0 that customer discrimination in restaurants is unconstitutional, as per the Civil Rights Act of 1964. But, it should be noted that the Civil Rights Act, while outlawing discrimination on basis of race or sex, does not specifically mention sexual orientation.

There were few rulings on sexual orientation until the 1996 case Romer v. Evans, in which the Court ruled 6-3 that an amendment to the Colorado state constitution allowing discrimination based on sexual orientation was unconstitutional. Of the five current Justices who were on the Court at the time, Stephen Breyer, Ruth Bader Ginsberg, and Anthony Kennedy voted with the majority, while Antonin Scalia and Clarence Thomas dissented.

Romer v. Evans wasn’t completely all-encompassing, as several states still have laws that are in some way discriminatory (in many states, it’s still legal for employers to fire workers for being gay, for instance). Still, the decision was cited as precedent in many high profile gay rights cases. Among them were the Lawrence v. Texas Supreme Court decision striking down anti-sodomy laws in all states, and the Massachusetts case Goodridge v. Department of Public Health which legalized same-sex marriage in the state.

Between those two cases, it would seem SB 101’s days could already be numbered. But, last year’s decision in Burwell v. Hobby Lobby Stores, Inc. set a big new precedent pertaining to what constitutes religious freedom, one that allowed private businesses to opt out of certain legal requirements that go against the owners' religion. So if SB 101 or a similar law should make it all the way to the Supreme Court, it's hard to say what would happen.


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