Denial of Service and LGBT Health
The question of which civil liberty takes precedent—equal protection under the law or religious liberty—remains largely unanswered.
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Advocates for sexual minority rights have celebrated many accomplishments in the past decade. The Defense of Marriage Act was deemed unconstitutional in 2013, and same-sex marriage became legal in all states in 2015. However, with progress comes backlash. One example of the backlash includes state laws permitting the denial of services to sexual or gender minorities. A recently published study by researchers at Boston University, Harvard University, Boston Children’s Hospital, and Columbia University shows that these laws are associated with large and harmful effects on the mental wellbeing of gay, lesbian, and bisexual adults.
Denial-of-service laws allow business owners, government officials, or healthcare providers to deny services to a person based on their real or perceived sexual orientation or gender expression. Services that can be denied include contracting a business owner for wedding-related services, adopting a child, or even using a public restroom. Thirteen states have laws that deny services to sexual minorities.
The study authors looked at three states (Utah, Michigan, and North Carolina) that passed denial-of-service laws in 2015. The Utah law permits individual government officials to refuse to issue marriage licenses for same-sex couples. Michigan’s law permits child welfare and adoption agencies to refuse adoptions to same-sex couples. North Carolina passed two laws. A 2015 law allows magistrates to refuse to perform same-sex marriage. A 2016 law (amended in 2018) forbids cities and counties from passing non-discrimination clauses on the basis of sexual orientation or gender identity.
The study authors analyzed sexual identity and mental distress data from the Behavioral Risk Factor Surveillance System (BRFSS) by looking at changes in mental distress over time and comparing the health of heterosexuals with that of sexual minorities.
Denial-of-service laws allow business owners, government officials, or healthcare providers to deny services to a person based on their real or perceived sexual orientation or gender expression.
Before the denial-of-service laws were passed, one in five (21.9%) sexual minority adults living in these states reported mental distress. After the law, this number increased to about one in three (32.8%). In contrast, the proportion of sexual minority adults reporting mental distress in the control states increased only slightly in the same time period (23.5% to 24.8%).
The change was only experienced by sexual minority adults in the law-passing states. The number of heterosexual adults reporting mental distress remained nearly the same in all states over the same time period (from 12.5% to 13.4%). When the study authors compared the change in mental distress for sexual minorities to heterosexuals, they concluded that denial of service laws are associated with a 46% increase in mental distress that is specific to sexual minority adults.
The cultural debate about denial-of-service laws is far from resolved, and it is now being fought in courts across the county. The Masterpiece Cakeshop v. Colorado Civil Rights Commission legal drama is the best known of these cases. This dispute was between a cake shop owner who refused to make a wedding cake for a gay couple and the Colorado Civil Rights Commission, which argued that this was unlawful. The fundamental question of the case: does a business have a constitutional right to discriminate based on its owner’s beliefs? The Supreme Court ruled that the Commission had been too hostile to religion in its original decision, but the justices did not actually decide the answer to the fundamental question. Instead, the ruling applied narrowly to specific aspects of the case.
The question of which civil liberty takes precedent—equal protection under the law or religious liberty—remains largely unanswered. However, states considering denial-of-service laws should consider the health implications of Raifman and colleagues’ findings. These laws are associated with large and harmful effects on the mental wellbeing of sexual minority adults.
