After 39 hours, Missouri Republicans in the state Senate on Wednesday shut down Democrats who had been filibustering a vote on what they called an anti-LGBTQ bill.
The bill, specifically, would put a constitutional amendment on the ballot — either in August or November — that would do two things: First, it would prohibit the state from punishing religious groups that refuse to perform wedding ceremonies for same-sex couples. Second, it would prevent the state from punishing private individuals and businesses for refusing wedding services to same-sex couples.
But both of these things are already true in most of Missouri. Religious organizations can already refuse wedding ceremonies to same-sex couples, as noted in the Supreme Court ruling that legalized same-sex marriages nationwide. And private individuals and groups, too, can already deny wedding services to same-sex couples, because Missouri has no civil rights law — as state and federal governments do for discrimination based on, for example, race — to make that illegal.
There are some exceptions in some Missouri municipalities, such as St. Louis County, where anti-LGBTQ discrimination is banned. In these places, the bill could provide a big loophole to enable discrimination.
The bill would also enshrine the legality of some forms of anti-LGBTQ discrimination into the state constitution. So if legislators did pass a civil rights law that protects gay people from discrimination, the amendment could let individuals and groups cite their religious beliefs to continue discriminating anyway.
But for the most part, the bill wouldn't create new legal protections for anti-LGBTQ discrimination in Missouri, because the state already legally allows such discrimination. And with a minority in both the Missouri House and Senate, Democrats never stood a chance in changing that.
What the proposed constitutional amendment would do in Missouri
The bill first needs to be approved by the Republican-controlled Missouri House and Senate, placed on the August or November ballot by Gov. Jay Nixon, and approved by voters to become an official state constitutional amendment. That's a long process.
But if it gets through all of that, it would legally allow people, particularly religious groups and private businesses, to cite their religious beliefs to deny wedding services to same-sex couples.
Specifically, the amendment would prevent the state from punishing people who cite their sincere religious beliefs to justify discrimination. (Penalty is defined broadly in the amendment. So the state couldn't use, for example, fines, changes in tax treatment, or licensing, accreditation, and certification powers to penalize someone who discriminates.)
Sen. Bob Onder, a Republican, told the St. Louis Post-Dispatch that he wanted to stop same-sex couples from forcing businesses to do things they religiously oppose. He cited one case in Oregon, where a baker was forced to pay damages after refusing to sell a same-sex couple a wedding cake.
"There was no desire to discriminate against them," Onder said, referring to the baker in Oregon. "The desire was to not be forced to testify to a religious point of view that she found contradictory to her faith."
But there's a very big difference between Missouri and Oregon: Missouri has absolutely no law banning businesses that serve the public — known as "public accommodations" — from refusing service to people based on their sexual orientation. But Oregon does have such a law.
Ultimately, that's why Oregon punished a business for anti-gay discrimination. And it's why anti-gay discrimination is legal in Missouri even if the constitutional amendment doesn't pass.
When it comes to religious organizations, they, too, are already allowed to deny same-sex weddings. As Supreme Court Justice Anthony Kennedy wrote in the majority opinion that legalized same-sex marriage, "The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered."
But Missouri's proposed constitutional amendment does pose one threat to LGBTQ rights: If state legislators eventually did pass a law that bans public accommodations from discriminating against gay people, the constitutional amendment would provide a potential loophole — the citation of sincere religious beliefs — that businesses could use to continue denying wedding services to same-sex couples.
Similarly, businesses could potentially get around local ordinances that ban anti-LGBTQ discrimination — like the law in St. Louis County — by citing religious beliefs protected by the proposed constitutional amendment.
Still, the broader problem is Missouri doesn't protect same-sex couples in the state from discrimination, regardless of whether this amendment passes. And Missouri isn't alone; most states lack legal anti-discrimination protections for LGBTQ people.
The real problem: LGBTQ people aren't legally protected in Missouri and most states
Most states don't ban discrimination based on sexual orientation and gender identity in the workplace, housing, or public accommodations (hotels, restaurants, and other places that serve the general public).
So in most states, it's legal under state law for an employer to fire someone, a landlord to evict someone, or a business owner to deny someone service — all because of their sexual orientation or gender identity. No new law must be passed to make this legal. It already is legal.
In comparison, discrimination against people based on race, national origin, and ethnicity is already banned in the workplace, housing, and public accommodations under federal and state laws.
This is the problem in Missouri. It's why a bakery could refuse to sell a wedding cake to a lesbian couple, why a photographer could refuse to take pictures of a same-sex wedding, and why any other business could flatly refuse to service gay couples just because of their sexual orientation or gender identity.
But Democrats control a small minority in Missouri's legislature, so they don't have the ability to pass a nondiscrimination law. So they're forced to fight off a constitutional amendment that certainly appears to allow anti-gay discrimination — even though it's already legal to discriminate against gay couples in the state.